PARA 94 MIDTERM STUDY GUIDE SPRING 2017

You are responsible for the first six chapters, the cases that I have mentioned, and all the lecture topics; the lectures are organized below. You still must read the chapters, and you must understand the holding(s) in People v. Dibb.

You are allowed a cheat sheet: 8.5 x 11, one side only, and you must create it yourself. Otherwise, you are free to put anything on the cheat sheet that you want; also, you are allowed, and even invited, to copy and paste from my study guide.

Be sure to bring a scantron to the class; either color form is fine.

PARA 94 CHAPTER 1

Lawo **set of rules and procedures usually intended to regulate some

aspect of society** Common law v. Civil Law

o Common Law Many uses/definitions

The body of law we brought over from England Judge made law HERE:

o Legal systems based on Precedent, as opposed to written codes and constitutions.

o The structure and predictability of these system are based on what has come before; how similar cases were decided in the past

o Relies on Precedent (Stare Decisis) as its guiding principal

o Civil Law (Systems) Here, as opposed to common law systems; not the same

distinction we will make btwn Civil and Criminal Actions Based on constitutions and codes

Codification: writing it down Clarity, predictability; Circumscribes the powers of the government; less

arbitrary enforcement Precedent in our system

o We use precedent and Codes;

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o Codes are interpreted and applied by courts; subsequent and lower courts follow previous rulings;

o Overturned Jurisprudence

o The study of law; philosophy of lawo Origins, meanings, and relations to morality

3 schools of legal philosophy:o ***Natural theory***

Law exists; it is our job to find it: it comes from moral and unchangeable laws of nature;

If a law fails to reflect laws of nature, it need not be obeyedo Legal positivism

If a law is properly created or enacted, it is valid; Not related to morality

o Legal realism Laws are subject to human frailty; Personal biases of judges mold the law.

o Martin Luther King, Jr: “"One has not only a legal but a moral responsibility to obey

just laws. Conversely, one has a moral responsibility to disobey unjust laws."1

Substantive lawo The laws themselves: what conduct is proscribed; what are the

elements of a prima facie caseo Think: the substance of the law

Procedural law:o How the laws are carried out; o By what procedure is a person brought to trial in criminal law;o What processes must be followed in a civil trialo Think: the process by which the substantive law is put into practiceo Without procedure, there are no rights – it is that important

Administrative Law: Legislative bodies (state legislatures and Congress) do not have

time or capacity to oversee the day-to-day implementation of the laws; Legislatures delegate the task to Administrative

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agencies; these are supervised by the executive branch; the legislation creating the agency includes authority to carry out the intent of the legislature by creating rules and regulations and orders: this is the body of administrative law.

Justifications for punishment:o Deterrenceo Retributiono Incapacitationo Rehabilitation

Criminal and Civil Lawso Crime: an act in violation of a criminal statute

Elements: that which must be proved by the State beyond a reasonable doubt

May result in state sanctioned punishment Guilty

DP and Equal Protectiono Murder; Burglaryo Tort

A civil wrong: no “punishment” By a preponderance Liable

o Contract actions Breach: damages

o Jurisdiction The power/Authority of a court to hear cases and to hale a

given defendant before it Personal and subject matter

PARA 94 CH 2

Malum Prohibitum Malum en se Negligence Fraud

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Symbols: Π, Δ Federalism:

o Relationship between Federal and State governmentso Federal Powers

Limited enumerated Implied

Those necessary and proper for executing any of the stated powers

Commerce clause Right/power to regulate interstate commerce Very broad: substantial effect on (Wickard v. Filburn)

1942 Read and know Katzenbach v. McClung, 379 U.S. 294

(1964)o Impact on interstate commerce

Limitation:o Com clause not basis for limiting gun possession

near schools Obama care:

o Not under commerce; under taxing powero State powers

Plenary powers; general health, welfare, safety Cannot conflict via supremacy Preemption: when the fed government occupies the field Exclusive and concurrent

Dual sovereigntyo Bill of rights

Selective incorporation Federal system

o Three branches; separation of powers; checks and balances States mirror federal

o Interaction with local gov’s; prosecution by county DA in state court, for the county of…

Federal legislationo Bill: proposed legislation: usually by a member(s) of congress; can be

anyoneo Bill is introduced: gets a number

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o Goes to committee: might die or survive, with reporto After report: bill is voted on in that houseo Submitted to the other house

Once passed by both houses, is submitted to the president

o President Sign, or veto To override, 2/3rds majority of each house

California o Same as above, but we also have the “initiative process”

Can be done as a statute, or a change to the state constitution o Act by citizens to put the proposed legislation to the voterso Petition – all those folks outside Whole Foods

How many signatures: based on previous gubernatorial vote totals:

For amendment: 8% of total votes cast For Statute: 5%

o Sufficient number, goes to ballot

PARA 95 CH 3 SELECTIONS

THIS CHAPTER IS IN CONJUNCTION WITH COURT SYSTEM LECTURE

Magistrateo A judicial officero In fed system: appointed by judges to issue warrants and hear pretrial

motions;o With consent of parties, can serve as trial judgeo In CA

Magistrates are quasi-judicial officers who perform certain constitutionally and statutorily defined functions in connection with the criminal justice system.

No list as to duties, but they are inferior in status to Judges Para legal

o Training and education; assist lawyerso B and P 6450 et seq

Florida bar v. Furman

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o UPL; divorce assistance Brady v. Maryland: Know Brady material.

PARA 94 COURT SYSTEM

Venue:o The place where the trial is held: do not confuse with JX

JX: personal and subject matter Courts:

o State: trial, court of appeal (district); supremeo Fed: trial (district); court of appeal (circuit); supremeo Trial courts have ‘original jurisdiction’ – where the case originateso Appellate courts do not; they only hear cases, and issues, that come

from lower courts Federal courts in CA

o Article III: Judicial power in one Supreme court with the authority to create inferior courts

o US district courts are the trial courts CA has Four federal judicial districts Hears fed question and diversity cases

o District courts of appeal = circuit courts 13 throughout US Ninth Circuit = CA, OR, WA, NV, ID, AZ, Alaska, Hawaii,

Guam, and Northern Marianna Islandso Federal JX

Over questions of federal law The US as a party Complete diversity and $75k in dispute

US Supreme courto Reviews Circuit court decisions and State Supreme Court decisions

involving Federal questionso Certiorari o FRCP

CA Courtso Three levels: Superior; courts of appeal; supreme

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o Superior Courts Two types of trial courts and one appellate court Small claims: up to $10,000 for individuals; 5K for Corps; 7.5K

for automobile cases Limited JX Unlimited JX Superior court appellate Department

Appeals from Limited JX superior courto Courts of Appeal

Review decisions of trial courts CA has six districts for courts of appeal

o Supreme court Power to depublish

o Administrative courts i.e. Unemployment insurance court some allow non-lawyers to represent clients

PARA 94 INTRO TO LAW LECTURE WEEK 3

Criminal intento Intent: resolve or determination of the mind

Proven by: evidence of surrounding circumstances and inferences drawn from proven facts

Conduct of defendant before, during, and after crime are admissible

o Intentionally caused if: It was his desire to cause the social harm; or He acts with knowledge that the social harm is virtually certain

to occur as a result of his conduct bomb on a plane; intent to kill one, virtually certain that

all will dieo as opposed to motive

drive behind the crime motive usually need not be proven;

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but: it can be relevant in SI crimes, and defenses, and can mitigate culpability

o Gen intent Inferred from the mere doing of an act

o Spec intent When the existence of a stated intent is a part of the crime Must be proven independently

Direct and circumstantialo Inference

Recklessly and negligentlyo Recklessly:

Consciously disregarding a substantial and unjustifiable risko Negligently

Actor should have been aware of a substantial and unjustifiable risk

o Difference Reckless actor consciously disregards; Neg actor’s risk taking is inadvertent

o Negligence also looks to a Reasonable Person standard Balance of subjectivism and objectivism A person in the actor’s situation

Blindness or a sudden heart attack are factors to criminal liability;

Hereditary factors and matters of intelligence and temperament are not;

o But… Criminal responsibility

o Actus reuso Mens reao Absolute defenses

Self defense (others) Insanity Necessity

Insanityo Δ must prove, by a preponderance..,;o Incapable of:

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Knowing the nature and quality of his acts; and Distinguishing right from wrong at the time of the offense

Felony Misdemeanor Wobbler Homicide

o Human…o Justifiable homicide

Waro Excusable homicide

Self defense Reasonable fear of imminent lethal threat Proportionality and necessity

Defense of others Anyone

Murdero Deliberate killing with malice aforethoughto 1st degree

Premeditation and deliberationo 2nd degree: all other deliberate with malice, and not partially excusedo Manslaughter

Voluntary Reduced due to extenuating circumstances Heat of passion

involuntary no intent to kill criminal negligence: Gross deviation from standard of

careo Felony Murder rule

rape, robbery, burglary, kidnappingo Pregnant

Viability Year and a day: mostly gone

o Mass/ serial/ euthanasia

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o Felony murder rule If, during the commission of an inherently dangerous felony,

anyone is killed, all co-conspirators are charged with 1st degree murder

Inchoate crimes:o Solicitation

Invite, request, command, encourage; No need for act in furtherance

o Conspiracy Agreement between two or more persons to commit an

unlawful act; Coupled with a step in furtherence

o Attempt Remember: substantial step, and how it differs within

conspiracy and attempt

PARA 94 CH 6

Marbury v. Madisono Judicial Review; the law is what the SC says it is.

Access to courts: Live controversy requirementso Ripenesso Advisory Opinionso Mootnesso Standing

1st Amendmento Speech and assembly

Content v. Conduct In schools: read ch 6 Cohen v. Caifornia

Fuck the draft Time, place and manner Less protected

Commercial Advertising Un protected

Obscenity

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Appeals to the prurient interest and lacks societal valueo Religion

Establishment clause Free expression clause

o Press In theory: no greater protection

Can use illegally obtained info, if not involved in the illegality

Access to trials 2nd am

SOURCES OF rightso Constitution(s)o Court decisions ( case law)o Statutes

1st Am 2nd Am 4th amemdment

o Search and Seizure 5th am

o DP 6th am

o Open trials; issue 8th am 14th am

substantive DP no arbitrary or unreasonable action by state officials

procedural DP Life, lib, prop

o Incorporation Selective won Grand jury indictment

Terry v. ohioo Reasonable suspicion v. probable cause

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PC: reasonable ground for suspicion that a person….; or that a place contains specific items connected with a crime

RS: a specific and articulable facts … suspecting a person… Subjective v. Objective

o Subjective reasonableness: Conduct that would be considered reasonable by that officer

engaged in that conduct (the, the) Based on an individual’s perceptions and feelings, as opposed

to externally verifiable phenomena o Objective reasonableness

What (any) reasonable person would do or feel under the circumstances

Based on externally verifiable phenomena; w/out bias or prejudice- disinterested

Good faith exception to exclusionary rule Sentencing

o Low, middle, higho Misdoo Felonyo wobbler

Appealo No constitutional right to appealo All states have a statutory right to appeal, once

Habeus Corpuso Collateral attack, as opposed to direct appealo Very difficulto Must be constitutional basiso Loser can appeal

Exclusionary ruleo Remedy to avoid future violations

Mapp v. Ohioo Exclusionary applies to states

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o …it is the law that sets him free. Nothing can destroy a gv’t more quickly than its failure to observe its own law, or worse, its disregard of the charter of its own existence

Impeachment exceptiono Crim defendant only

FPT doctrineo That found purely, but indirectly as a result of improper searcho Exceptions

Purged taint Ev found: big Q:

o Was derivative ev found via original violation or some other means that are purged of the primary taint

o Wong Sun: D was illegally arrested, but later came back, of his own free will to the station house and confessed: attenuated to dissipate taint

Independent source Entered apartment illegally; then, after that, obtained

search warrant from other info- independent of original search

Inevitable discovery If it would have been discovered by lawful means

4th am analysiso Government actor

Regulators/inspectors too PS in gov cap

o Instrument or agent of the state

Private cit: purely on own initiative But if PS gives to state, and state does more to search,

then is gov actor( the film canisters): substantially more intrusive

o Reasonable expectation of privacy Now, subjective and objective combined

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Seeks to preserve as privateo Justification for seizure/search

Undercover/ false friendo Information conveyed voluntarily to a false friend

Abandoned propertyo Garbage on the street: children and snoops

One’s physical characteristicso No REP

Open fields and curtilage o Curt.= area to which extends the intimate acvitivy associated with the

sanctity of a man’s home 4th am applies

o V.= open fields 4th am does not apply

o To distinguish Proximity to house Is area within fence surrounding the house? Nature of use Steps to ensure privacy

o Naked eye flyover = no search Dow: even enhanced photos = no search

But: must be lawful Kyllo: thermal imaging

o Not in general use by publico Get a warranto Dog outside apartment

Helicopter = ok sans warrant Seizure

o Property If removed from actual or constructive possession

o Person Reasonable belief… By pursuit

But, must submit to police authority

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Hodari Do No PC to arrest: chased, tossed, no 4th am

So, if 4th am applies, what does it requireo A priori justificationo Reasonableo For warrantless search and seizure, need PC

Search incident to arresto Scale

PC RS Admin justification

Probable Causeo Beck v. ohio

Above reasonable suspicion, less than for conviction Reasonable ground to suspect that a person has committed (is

committing) a crime, or that a place contains specific items connected with a crime

o Always required for: Arrests: w or w/out warrant Searches and seizures of prop w/ or w/out warrants

o Reasonable but mistaken: facially invalid First hand knowledge

o Before arresto Ybarra: warrant for tavern, not the patrons

RSo Below PC, above hunch

Warrant componentso Neutral and detached

Officer engaged in the often competitive enterprise of ferreting out crime

No bonus for signing No personal interest

o PC To arrest

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Pc that person arrested committed the crime

o Particularity Person = easy Place

With enough description that officer can ascertain place Reasonable mistake

Thing Reasonable basis for mistaken belief, seizure will be

upheld Plain view In complex cases, can be more general

Arrest with warrant’o Illegal arrest: remedy is release

But FPT doctrine applieso Arrest req’s PC: stop only RS

Arrest warrant required:o In home, sans exigent circo In 3d party home, need two warrants

Knock and announceo Unless dangerous or futile: RS standard (exigent circ)o Time to wait_ facts driven

Searches with warrantso Knock and announceo Lacking will not lead to exclusiono Reasonable mistake

Time Promptly Time of day

Scope/ manner Reasonable based on object of search Detain people on premises, but do not search them

o Ybarra v. Illinoiso Case by case- very touchy

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Technologyo Private or public

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