Law and Society
Law and Society POLT 407
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This 13 page Class Notes was uploaded by Jean Schmeler on Thursday October 29, 2015. The Class Notes belongs to POLT 407 at University of New Hampshire taught by Richard Aliano in Fall. Since its upload, it has received 23 views. For similar materials see /class/231698/polt-407-university-of-new-hampshire in Political Science at University of New Hampshire.
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Date Created: 10/29/15
Law and Society Study Guide Exam 2 Criminal Law Virtually all passed by legislature Vast majority handled by state Statute establishes definition and penalties 0 Definition of crime needs to be definite not vague Crime is an offense against society 0 Comes from crime agai5nst king s peace Constitutional limitations of what can be made crimes 0 Expost facto when you did something when it wasn t a crime then becomes a crime can t go back prospective 0 Bill of attainder when a legislature finds someone guilty of a crime without judicial review can t make law for specific individual ex drug addict 8th amendment prohibits government from cruel and unusual punishment limits what kind of punishments states can give Types of Crime Malum in se wrong in itself ex Murder Malum prohibitum wrong because its against the law ex Parking violations Felony go to prison for more than 1 year Misdemeanor go to prison for less than a year Elements of a Crime substance of criminal law Mens rea criminal state of mind criminal intent does not mean motive o 4 types of criminal intent I act purposefully consciously acted to intend a specific result ex Guns to someone s head act knowingly aware that harm is very likely to occur ex Shooting a gun in a public place act recklessly acts with a conscious disregard ex Shooting a gun in the air at 4th ofJuly parade act negligently unconscious risk taking ex Shooting gun in the air on own property kill someone trespassing Actus reus wrongful act VOLUNTARY movement of your body commission 0 Mens rea and actus reus must exist simultaneously to be a crime Causation prosecution must show the act caused injury to someone Omission failure to act 0 Exceptions relationship assumed duty law can impose a duty Strict Liability Crime no mens rea required ex Speeding statutory rape and selling underage Can t make mere status a crime ex Being a drug dealer isn t a crime being in possession of drugs is Possession of contraband satisfies actus reus 0 Actual on person 0 Constructive somewhere under your control Vicarious Liability makes you criminally liable for what someone else has done ex Owner ofa bar can be liable if a waitress serves alcohol to a minor Causation isn t necessary for all crimes doesn t matter if no one was hurt ex Reckless driving PerlUFYl But for the defendant s act the victim would not be dead factual Legal cause proximate intervening unforeseeable act Defenses for Committing Crime yes I committed act no I m not guilty Procedural o Entrapment police give you an opportunity to commit a crime but ifthey induce you its entrapment o Statute of limitations can t be charged for a crime after a certain period besides murder 0 Double jeopardy can t be charged with the same crimes more than once Justification 0 Self defense can only use deadly force to repel deadly force 0 Consent Excuses 0 Age 0 Insanity You can commit a crime without ever committing a crime 0 Criminal solicitation ask or beg someone to commit a crime if person doesn t commit the crime you ask 0 Attempt incomplete crimes but intent to commit crime 0 Conspiracy two or more people agree to commit crime Homicide the taking of life of a living human being Noncriminal war death penalty police officer unavoidable traffic accident Criminal o Negligent homicide vehicle homicide 0 Murder I 1St Degree premeditated I 2nd Degree depraved heart 0 Manslauter I Voluntary homicide in heat of passion with provocation I Involuntary charges of recklessness Common Law Crimes Larceny the wrongful taking of the personal property with the intent to permanently deprive Robbery taking the personal property of another while on their person or within their presence with the use of force with the intent to personally deprive Burglary breaking and entering ofthe dwelling of another at night with the intent to commit a felony during Battery any unconsented touching of another person s body which is harmful or offensive person doesn t have to be aware of it Assault place someone in fear of imminent battery Procedural Safe Guards that law provides to the criminally accused found in the bill of rights mini code of criminal procedure 4th amendment protects from unreasonable search and seizures 0 warrant can be looking for contraband drugs evidence of a crime blood stained carpet instrumentality ofa crime gun you used fruits of a crime stolen property 5th amendment self incrimination 0 can t be questioned during pretrial discovery 0 can t force you to testify at trial and can t draw any negative inference if you don t testify 0 police interrogation 9 Miranda warnings o testimonial evidence 9 talking about crime I line up fingerprints etc doesn t need count as self incrimination 6th amendment right to council 0 if you could face one day in jail you are entitled to an attorney 8th amendment cruel and unusual punishment 0 Can t have disproportionate punishment 3 strikes your out for felony 0 Death penalty has never been issued unconstitutional must be applied in arbitrary fashion o In a capital offense you have a bifurcated trial two part trial I First phase was the guilty phase Second phase is the same jury now hears evidence to see if death penalty is warranted prosecution uses aggravated factors then defense uses mitigating factors then jury makes decision based on those factors Death penalty doesn t have to be painless Exclusionary Rule judicially created even if they obtain evidence and your 4th and 5th amendments are violated they can t use that evidence at trial 9 main purpose is deterrence of police to make sure they follow procedure controversial because people think trial should be about finding the truth not protecting the guilty Warrantless Searches where searches are lawful and constitutional 1 Consent waive rights 2 Search incident to lawful arrest if police arrest you they can conduct a limited search person and limited vicinity 3 Stop andfrisk police have no seen you commit a crime no probable cause but they can stop and frisk you for reasonable suspicion 4 Automobile stop and search if a police officer lawfully stops you and sees contraband in plain sight they can arrest you and search you and when car is impounded search the whole thing 5 Plain view if a police officer is legally where they are suppose to be and if they see smell hear etc they can come in and search 6 Sobriety check points 7 Drug testing started with train conductors after accidents M a wrong private individual harm of another individual s person or property Intentional somebody acts purposefully to harm an individual Unintentional negligence unreasonable risk of harm Strict Liability you harmed someone else maybe not purposefully or even negligent Compensatory damages not to punish defendant but to compensate the plaintiff to make the plaintiff quotwhole again Tort Reform decreasing the attorney s portion changing in statute of limitations 9 caps on noneconomic recovery band frivolous lawsuits Tort Feasor person who commits the tort defendant Elements ofthe Cause of Action Negligence 1 Defendant owed plaintiffa certain duty of care as posed by the law Plaintiff must show defendant breeched duty of care Plaintiff must show damages caused because of that breech Plaintiff must show that the breech caused the damages 9 substantial factor not just a factor PEPquot Common Law Dut of Pro ert Land 1 business gueststore 2 social guest 3 trespasser not act willful and want to way you must act in everything you do as a reasonable prudent person 9 lower standard of care children blind person etc 9 higher standard of care doctor law professiona negligence malpractice need expert testimony negligence per se violate a statute that was meant to protect public res ipsa loquitur the thing speaks for itself this type of event doesn t occurs unless someone is negligent ex amputate wrong leg negligence is solely in the hands of the defendant Defense to Negligence Assumption of risk going to baseball game get hit by a ball you assumed that risk by going Plaintiffs contributory negligence you claim the plaintiff in whole or in part was cause of own negligence 0 Comparative negligence huge damages even if slightly caused by the plaintiff the defendant would still have to pay the percent that is his fault Negligence cont Punitive damages not to compensate plaintiff but to punish defendant 0 Defendant A 70 at fault 0 Defendant B 20 at fault 0 Defendant C 10 at fault Joint and several liability can go after defendant C whose only 10 at fault for full about of verdict because they have the most money 0 Some tort reform did away with this Vicarious liability imputed negligence the law opposes liability for negligence of someone else owner of car 9 driver 0 Respondent superior superior answers for employee Dram shop act bartender serves intoxicated person alcohol they kill someone they can sue the bar Intentional Tort punitive damanges Personal 0 Violation of body assault battery 0 False imprisonment intentional confinement that your aware of and blocked all safe exists shop keeper s privilege o Defamation unprivileged or unconsented publication of a factual statement which is untrue which injures the plaintiffs reputation I Publication must be communicated to a third person I Truth an absolute defense for defamation I Slander spoken word I Libel written assumed reputation is ruined o nfiction of emotional distress outrageous conduct that causes extreme mental anguish o Invasion of privacy public disclosure of private facts Business 0 Interfering with intellectual property copyright patent etc o Interfering with contract A and B enter contract C interferes A can sue C Property 0 Trespassing unauthorized entry of another s land 0 Conversion interference with person property 9 theft etc 0 Fraud intentionally deceive someone 9 defendant misrepresent the facts plaintiff relies on those facts which causes damages 0 Nuisance you use your land to interfere with enjoyment of someone else s property Strict Liability don t have to prove negligence Dangerous wild animals in common law Domesticated animals must show negligence in common law 0 Today by statute strictly liable Ultra hazardous activities This turned into Strict Products Liability ifa product was defective unreasonably dangerous when it reached the consumers didn t have to show negligence Law of Contracts any agreement between competent parties based on genuine assent supported by consideration that follows the law and sometimes is in writing 1 Agreement someone makes an offer must have unconditional acceptance from other party promise 9 promise promise 9 act promise 9 refrain 2 Parties people corporations companies etc must be 18 3 Genuine Assent reality of consent can t sign under duress undue influence relationship of parties fraud must be VOLUNTARY 4 Consideration that which is bargained for must be giving something up and the other person is benefiting 5 Can39t be illegal or unlawful ex Gambling debts Statute of Fraud contracts that must be in writing Conveys interest in real property Prenuptional agreement Surety you agree to pay the debt if someone else doesn t 9 parents cosign loans Sale of goods over 500 Can t be performed in one year 3rd party beneficiary A and B enter into a contract for the benefit of C Breech of Contract remedy 9 money to compensate the nonbreeching party to get plaintiff in the same position they would ve been in ifthe contract went throught Eguitable Remedy sure for specific performance babe ruth baseball houses irreplaceable Duty to Mitigate as nonbreeching party you can t just let the damages go up and up must sue right away Law of Property not the thing but its your legal right to the thing Realty land or anything that s permanently attached to it Personalty anything that s not real property o Tangible touch intangible intellectual property Estate the duration oftime and the rights you have with real property freehold o fee simple length oftime forever do what you want to do 0 fee tail land had to stay in family 0 life estate only own for your life non freehold o fancy word for lease Easement right to use some one else s property power lines Adverse Possession if you occupy someone else s property without their consent you eventually own it Concurrent Ownership two people own something Tenants in common someone dies it passes through their will Joint tenants rights of survival if one of you died other gets the whole thing Tenants by entirety marriage protects one spouse from the debts of the other spouse Lien safety net if you breech contract company can take your property ex Bank and mortgage 9 can just take your house Testate made out a valid will can t disinherit spouse entitled to 13 person who makes will is a testator 1 testamentary capacity sound mind 2 sign your will and witnesses sign Intestate means you die without a will Family Law Domestic Relations vary by state Marriage is a contract state must approve of breaking it up 0 Creates obligation to support one another 0 Right to inheritance Common law marriage tell people they are married and live together eventually they will be legally married Formal marriage must have capacity to marry age blood related monogamy opposite gender fraud DOMA defense of marriage act the federal government will not recognize same sex marriages other states don t have to recognize it either benefits Dissolution of Marriage 1 Divorce must have a divorce decree issued by a court 2 Annulment act like so called marriage was invalid at inception so it was NEVER a marriage 3 Legal seperation religious reasons a the same things as divorce Divorce Fault o Adultery 0 Physical or mental cruelty o Abandoment I Actual I Constructive No Fault o rreconciabe differences that resulting marital breakdown Division of Property its not whose name its under marital property any property obtained by either spouse separate property gifts and inheritance Equitable distribution fair Spousal Support periodic payments alimony Child Custody primary caregiver best interest ofthe child Law and Society Study Guide Exam 2 US Constitution American Revolution 9 British constitution in question can only be taxed by legislature English had a huge debt after French Indian War and wanted American colonists to pay for it 1789 constitution was ratified and survived until today 27 amendments 10 are almost part of the constitution Bill of Rights If it wasn t for the Anti Federalists there wouldn t be a Bill of Rights Madison purposed 12 amendments only 10 of those were ratified Factions political parties main checks for power I Protects from the tyranny of government and protects liberty Articles of Confederation First constitution league of free states Congress means a diplomatic meeting of independent countries One branch congress o powers to declare war alliances ambassadors Each state had one vote 0 to amend the articles of confederation it required y state 9 unanimity Congress couldn t make laws that affect individuals Didn t have the power to tax Any money they had was requisitions from states Controlled commerce 0 Interstate 0 Foreign Shay s Rebellion 1786 debt ridden farmers rose up against Massachusetts state government May 1787 delegates of 12 of the 13 states were sent to Philadelphia Constitutional Convention Major Compromises 0 Madison came up with the Virginia plan 0 Wanted a system of representation based solely on population 0 Wanted congress to have veto over state 0 Hamilton wanted government based on Great Britain 0 Wanted president for life 0 Didn t get any of these 0 Large states vs small states 0 Proportional representation vs equal representation 0 Came up with house of reps to satisfy large states and senate to satisfy equal representation I House of reps 2 year office I Senate 6 year office 0 Who to count as population 0 35 compromise every 5 slaves would count as 3 people I Increase representatives and electoral college 0 Slave trade 0 Ban importation of slaves northern states 0 The compromise they would not talk about it for 20 years Substance of Constitution no mention of god slavery or democracy 0 Issue between liberty and authority power 0 Separation of powers and checks and balances I LEG HR people 23 vote and Senate 23 vote I EXEC veto I JUD judicial review 0 Anti federalist thought there was too strong central government 0 Preamble 0 Written by Govenear Moms 0 Article One Legislative o All powers quotherein granted I Longest article republic I Only house of reps chose by people Senate to be chose by state legislative I Section 8 enumerated powers tax borrow money commerce clause 0 Necessary and proper clause 9 broadens implied from granted powers allows congress to have to power to create laws that are necessary and proper to carry out all their duties I Section 9 congress cannot o Suspend writ of habeas corpus bring in front ofjudge before you can be legally held 0 Bill of attainder can t pass laws that make mere status a crime 0 Expost facto cant make something unlawful that happened in the past I Section 10 states cannot 0 Print money 0 Pass laws that interfere w contracts 0 Article Two Executive 0 Presidential power 0 Electoral college over complicated idea I Electors make votes up to state legislature how electors are chosen electors never meet 0 Vice President is president of the senate 0 Section 2 speci c powers I Commander and chief of armed forces I Power to grant reprieves and pardons for federal crimes I Take care that the laws are being carefully executed I Give congress the state of the union 0 Section 4 removal I Treason bribery or other high crimes or misdemeanors I HR impeach majority I Senate convicted 23 Article Three Judicial 0 Supreme court is the only court created by the constitution Congress creates the lower courts Hold offices for life during good behavior Can t decrease the salaries Section 2 what kind of cases supreme courts can hear I Trials of all federal crimes should have a jury Section 3 define specific crime I Reason in levying war against them or adhering to enemies 0 Very hard to prove treason two witnesses to the same overt act 0 Congress decides what punishment is o Fugitive Slave Clause a salve in a free state does not become free 0 O O O 0 Article Four Extradition o Cant avoid criminal penalties because you leave the state Article Five Amendments 0 Propose and amendment 23 of both houses of congress must agree 0 And state legislature to ratify Article Six Supremacy Claus 0 Supreme law oftheland 0 Federal constitution takes precedent over state laws 0 Every government official must take an oath to support the constitution Article Seven How constitution will be ratified 0 913 states special conventions Brutus Anti Federalist New government is not a confederation of states rather a consolidation 0 O O 0 Creating national government eclipsing the states Necessary and proper clause thinks gives unlimited power Supremacy clause What Is the roll of the states Unlimited power to tax destroy states government which is closest to the people A republic can t exist over large country Montesuqe 0 Identify own interest w common good in small area no conflict 0 Large electoral districts in house 0 Far from people 0 Dangerous to have a standing army in peace time 0 Supreme Court 0 What are proper boundaries 0 Imperial judiciary government judiciary aristocracy ofjudges 0 Don t be fooled they will have power ofjudicial review 0 Interpret according to spirit rather than words 0 Interpret what they want the constitution to mean rather than what it was intended to mean 39 Madison 0 Answering critique from anti federalist about consolidation 0 quotThis is a republic because government is answerable to the people 0 He said its something new 9 compound republic 0 Put sovereignty in quotwe the people 10 Madison 0 A republic really needs a large territory 9 quotextended republic o Factions people divide into separate groups but there is nothing you can do about this 0 Diversity in the faculties of men based on two things 0 Protect people s differences in society passions 0 Various economic interests 0 Can not do away with factions without doing away with freedom 0 So must control the effects mischief s of factions I Extended republic 9 better to control freedom 0 Large electoral districts are better more population you get a better quality of people 0 The most factions the more likely the will balance one another Representation extended republic independent judiciary separation of powers and checks and balances original republicanism O 47 Madison 0 Separation of Power and Checks and Balances o Anti federalists say they should be totally separate 0 Checks and balances interrupt separation of powers the branches overlap each other 0 Misinterpret Montesque o Praised England no total separation 0 Look at state governments 48 Madison 0 Unless you have checks and balances you can t have separation of power 0 quotPower is of an encroaching nature people take power as far as they can I if no check 9 unlimited power 0 Ambition must be a check on ambition 0 Something is necessary besides parchment barriers 0 Otherwise there would be legislative dominance 51 Madison 0 What do we do o If one branch checks the other branch 0 Little involvement as possible choosing members of other branch 0 Split legislative in half 78 Hamilton Supreme Courts 0 Called them guardians of the constitution 0 Unless they hold tenure they can never be independent judges 0 Legal deposition 0 Least dangerous branch 0 Weak feeble 0 Executive sword Legislative purse WILL and public policy Judicial judgment 0 All suppose to do is protect the constitution o quotmanifest tenor obvious meaning power to protect constitution is not to be used lightly o 1 Courts interpret the law 0 2 Constitution is fundamental basic law I Logical that the supreme court interprets the constitution o rreconciabe differences 9 are only thing they get to decide very narrow 84 Hamilton Why no bill of rights 0 Not all states have bill of rights 0 Concept comes from king 0 Its ultimately a bill of rights already because people rule 0 Unecccessary because its already there 0 Dangerous why say they cant do something ifthey don t have the right to do it o If you start listing the rights that people have it s the only rights they have 0 9th amendment 0 people don t have just the rights of the constitution 0 main reason it didn t exist was the writers at the constitutional convention were too tired
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