Intro to Law
Intro to Law
Dillard
Fall07/Winter08
Study Guide for Final Exam
BASICS
3 Branches of Government:
Legislative-Makes laws
Federal Congress has two houses:
Senate: 2 Senators / state
Oregon Senators:
Gordon Smith (R)
Ron Wyden (D)
House of Reps: 435 Reps (proportional to population)
Oregon Representatives:
|District |Representative |Party |Hometown |
|01 |David Wu |D |Portland |
|02 |Greg Walden |R |Hood River |
|03 |Earl Blumenauer |D |Portland |
|04 |Peter A. DeFazio |D |Springfield |
|05 |Darlene Hooley |D |West Linn |
Executive -Enforces laws, diplomat, commander of military, signs/vetoes legislation
-May be impeached by majority vote in house and removed by 2/3 vote in Senate
Judicial -Interprets law
-Supreme Court (9 justices) deals with cases concerning Federal law, disputes between states, and interpretation of the Constitution
Checks and Balances: each branch is independent, but has power to restrain the other branches. This keeps one branch from becoming too powerful and abusing its power. Examples: congressional investigations of actions by the president or other executive officials, the prosecution in court of members of Congress or the executive branch for violating the law, president’s power to veto laws passed by Congress, Congress’ power to override a presidential veto, judicial review
Separation of Powers: government power is not concentrated in one person or group, but is spread across several branches
Law—why do societies have laws? What is the relationship/difference between laws and values?
Set of Rules and Regulations made and enforced by the government that regulates the conduct of people within a society
They reflect and Promote Society
3 Values within most every law:
Moral Value: Right and Wrong ethically
Example: Murder
Economic Value: Protection of Property
Example: Theft
Political Value: Relationship btwn Government and Individuals
Example: freedom of speech
Most laws are a combination of values
o Laws must be fair, enforceable and citizens have to be able to understand them
o If laws are not understood, they are difficult to follow
o Laws may outgrow their necessity
Civil vs. Criminal law (What are the differences? What burden of proof is required in each?)
Criminal law:
regulates public conduct, sets out duties one owes to society
Legal action brought by the government against a person charged with committing a crime
Burden of proof: beyond the shadow of doubt, reasonable doubt
Civil law:
regulates relations between individuals and groups
File a lawsuit or civil action, when one feels that they have been wronged by another person, or group of persons
Exp: marriage, contracts, real estate, insurance, consumer protection, negligence
Burden of Proof: Preponderance of the evidence (evidence that seems more likely, or credible)
Judicial Review: a court may void any law passed by Congress or a state legislature if that law conflicts with the nation’s highest law, the Constitution
Precedent: is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts.
Marbury vs. Madison
Marbury was a “midnight appointee” of Adams to the position of DC Justice of the Peace
Jefferson became President and ordered Madison (Sec of State) to withhold Marbury’s commission (and others)
Marbury petitioned the Court, but the Supreme Court turned down his petition b/c the law it was based on was deemed unconstitutional…thus establishing judicial review
How is Constitution amended?
2/3 vote of both houses
2/3 of state legislatures may ask for a constitutional convention
3/4 of states must ratify the new constitution in order for it to take effect
Supremacy Clause: Article VI of the Constitution…states that Constitution and Laws of the United States shall be the supreme law of the land
Lobbying: influencing lawmaking process by convincing lawmakers to vote the way you want them to; anyone may be a lobbyist
Voting: voting brings up the contrast between representative democracy and direct democracy…
Representative democracy: we vote for reps who vote on laws on our behalf
Direct democracy: citizens actually vote on the laws; initiatives and referendums are the only time when the US acts as a direct democracy
15th Amendment: Allows former slaves and all people of color to vote
19th Amendment: Allow women to vote
26th Amendment: Lowers voting age to 18
Felony vs. Misdemeanor (What are the main differences?)
Felony: > 1 year in prison
Misdemeanor: < 1 year in prison
What is the purpose of government?
Difference between “Line Item Veto” and “Pocket Veto”
Pocket Veto: Normally if the President waits 10 days after receiving a bill, it automatically becomes law. However, if a session of Congress ends during those 10 days, he must sign the law by hand, if not it is pocket vetoed and has to start from scratch at the next session
Line Item Veto: The President was briefly granted this power by the Line Item Veto Act of 1996, passed by Congress in order to control "pork barrel spending" that favors a particular region rather than the nation as a whole. The line-item veto was used 11 times to strike 82 items from the federal budget by President Bill Clinton. However, U.S. District Court Judge Thomas F. Hogan ruled on February 12, 1998, that unilateral amendment or repeal of only parts of statutes violated the U.S. Constitution. This ruling was subsequently affirmed on June 25, 1998, by a 6-3 decision of the Supreme Court of the United States in the case Clinton v. City of New York. The case was brought by then New York City mayor Rudy Giuliani.
How can Legislature override a Presidential veto?
Veto: Latin “I forbid”
2/3 vote in both houses can override
Mediation/Arbitration/Negotiation
All are ways to settle disputes out of court
Mediation: third person listens and helps two people/groups talk about their problem and settle their differences…not binding
Arbitration: both people in a dispute agree to have a third person listen to their arguments and make a decision for them
Negotiation: people involved in dispute agree to talk with each other about the argument and come to an agreement that both parties are satisfied with
Court system (Trial/Appellate)
Trial Court: listen to testimony, consider evidence and decide facts in disputed situations
Appellate/Appeals Court: One party presents arguments asking the court to change the decision of the trial court; most common way you can take a case to an appellate court is if you can prove that an “error of law” occurred at the trial court level
CRIMINAL LAW
Act + Intent (exception: strict liability cases…doesn’t matter if there was intent…for example selling alcohol to minors): Did the act + meant to commit the crime
Motive: reason a person commits the crime (note difference between intent and motive)
Preliminary Crimes:
Solicitation: ask, command, urge or advise a person to commit a crime
Attempt: accused must have both intended to commit crime and taken substantial step towards committing the crime
Conspiracy: agreement between 2+ persons to commit a crime (sometimes considered a threat to freedom of speech and association)
Crimes against Person:
Criminal and Non-criminal homicide: homicide is the killing of a human being by another human being.
Non-criminal: killer deemed faultless; Examples are killing of enemy soldiers in war, executioner killings, self-defense, police officer shoots somebody who poses a threat of death or serious harm
Criminal: killing with malice
1st Degree: premeditated murder
2nd Degree: malice killing but without premeditation
Felony Murder: Killing that takes place during another felony act, like a burglary; this is considered 1st degree murder
Voluntary Manslaughter: intentional killing committed under circumstances that mitigate, but do not justify the killing (loss of self-control if provoked to an extreme degree)
Involuntary Manslaughter: unintentional killing that is the result of reckless conduct
Suicide/Euthanasia:
Suicide: deliberately taking your own life…used to be considered criminal, but now only attempted suicide is considered illegal and courts send people for counseling. Someone who assists in a suicide can be charged with manslaughter or murder
Euthanasia: putting someone to death painlessly
“living will”: DNR, etc.
Oregon the only state that allows euthanasia…with certain parameters
Assault v. Battery:
Assault: attempt or threat to carry out a physical attack upon another person
Battery: any unlawful physical contact inflicted by one person upon another without consent…injury not necessary
Forcible vs. Statutory Rape:
Forcible Rape: unlawful sex committed by a man with a woman by force and without her consent… The rape of women by men is the most frequent form of the assault, with an estimated 91% of rape victims being female and 9% being male while 99% of offenders are male.
Statutory Rape: complex law…different by state…cannot have sex with minors, though age difference between 2 people is significant, even if they argue that the sex was consensual.
OREGON law:
Sexual offenses are defined under the Oregon Revised Statutes Chapter 163. With regards to age only, the following offenses are defined.
18 + - Consent for all laws
Under 18 - Defined as Sexual Abuse 3 (Class A Misdemeanor)
Under 16 - Defined as Rape 3 / Sodomy 3 (Class C Felony) (ORS 163.245)
Under 14 - Defined as Rape 2 / Sodomy 2 (Class B Felony)
Under 12 - Defined as Rape 1 / Sodomy 1 (Class A Felony)
Additionally, Oregon has a 3 year rule defined under ORS 163.345. However, this does not apply to Rape 1, or Sodomy 1, effectively limiting the age to 12. However, a person can still be charged with Sexual Misconduct (Class C Misdemeanor) under ORS 163.445, if the victim was under 15 years old.
Crimes against Property:
Burglary: breaking and entering with intent to commit a crime
Robbery vs. Larceny:
Larceny: unlawful taking and carrying away property with intent to steal it
Robbery: unlawful stealing by force or intimidation
Arson: willful and malicious burning of another’s property
Computer Crime: hacking
Vandalism: willful destruction of another’s property
Extortion: blackmail, using threats to obtain the property of another
Embezzlement: unlawful taking of property entrusted to you (like money entrusted to a banker)
Forgery: falsely making or altering a document with intent to defraud (signing someone else’s name)
Crimes of Substance Abuse:
Tobacco:
o Cartons must carry warning
o Must be 18+ to purchase
Illegal Drugs:
o Selling or carrying large amounts guarantees jail time, even for 1st offense
o Some states consider even simple possession of small amounts as a felony
o Major drug dealers face life without parole
o In 1972, Oregon became the first state to decriminalize marijuana. Possession of 28.45 grams (1 ounce) or less is punishable by a $500 to $1,000 fine; stricter punishments exist for sale or cultivation.
Drunk Driving:
o 21+ to drink
o DUI / DWI: Driving Under the Influence / Driving while Intoxicated
o DUII: Driving under the Influence of Intoxicants
o BAC: blood alcohol concentration (0.08%)
o Zero tolerance laws: the license of anyone under 21 driving with a BAC of .01% or higher (.02% in some states) will be suspended.
OREGON LAW
o Motorists will fail a DUII field test if their blood alcohol reading is 0.08 percent or higher.
o For drivers under 21 years of age, any amount of alcohol in the bloodstream constitutes a failure of the sobriety test.
o Drivers who fail a DUII test and have their Oregon driver license with them will have it confiscated. The arresting officer will issue a temporary permit for 30 days, after which suspension is in effect and the temporary permit is invalid.
o The length of suspension from the Oregon Department of Motor Vehicles (DMV) for DUII arrests varies as follows:
o For failure of a breath test, DMV suspends driving privileges for 90 days, and for one year if you have any prior alcohol-related offenses in the last five years.
o For refusal to take a breath test, DMV suspends driving privileges for a year, and for three years if you have prior alcohol-related offenses in the last five years.
o For refusal to take a urine test, DMV will suspend driving privileges for one year, of for three years with prior alcohol-related offenses.
o For refusal to take a blood test while receiving medical care after a collision, DMV will suspend driving privileges for 90 days, and for one year if you have prior alcohol-related offenses in the last five years.
o For failure of a blood test for DUII while receiving medical care after a collision, DMV will suspend driving privileges for 90 days, and for a year with prior alcohol-related offenses.
o Oregon drivers convicted of DUII who still have driving privileges are required to return any license in their possession to the DMV when a suspension begins.
o The Oregon DMV may also suspend driving privileges for DUII or related conviction in another state.
Defenses:
No crime committed (no crime committed, no criminal intent)
Defendant did not commit crime (need to present alibi)
Crime committed BUT either Justified or not criminally responsible (insanity defense or self defense)
Criminal Justice Process
Arrest: person suspected of crime taken into custody either by arrest warrant, or warrantless arrest based on probable cause
Role of Probable Cause: more than suspicion or hunches…reasonable belief that a person has committed a crime
When may an officer “stop and frisk”?
If a person is behaving suspiciously and is likely to be armed
Search and Seizure (exclusionary rule, search warrant, searches without a warrant)
o 4th Amendment
o exclusionary rule: evidence found in an illegal search cannot be used at trial
o search warrant: court order obtained from a judge; someone, typically police officer, must testify under oath the facts and circumstances justifying the search (affidavit)
o warrants are specific…cannot look in desk drawers for TV’s
o plain view evidence is legitimate
o Non-search warrant searches:
▪ if a person is arrested, the police may search that person and the area immediately around the person
▪ Stop and Frisk…usually for weapons, but drugs are included if obvious to the touch
▪ Consent: voluntary compliance with police request
▪ Plain View: if an officer can see illegal items from where the officer has a right to be, then those items may be confiscated w/o warrant
▪ Hot pursuit: may enter a building w/o warrant if in hot pursuit
▪ Vehicle searches: officer may search vehicles if they have probable cause that they will find illegal items
▪ Emergency situations: for example, bomb threat
▪ Border and Airport Searches
Interrogation/Confession (5th Amendment/Miranda v. Arizona)
o 5th Amendment: due process, right to remain silent
o 6th Amendment: right to lawyer
o Miranda v. Arizona: Supreme Court ruled that Miranda’s confession could not be used at trial b/c officers had obtained his confession without informing him of his constitutional rights; people must be given their Miranda rights before questioning
Booking/Bail:
o formal process of making a police record of the arrest
o judge explains defendant’s rights and charges against them
o assigned a lawyer, or given opportunity to get one
o misdemeanor cases: defendant must enter plea of guilty or not guilty
o felony cases enter plea later at arraignment
o Bail: money person has to put up in order to be able to leave custody; ensures that they will return for trial
Preliminary Hearing
o Used in felony cases to determine if there is enough evidence to require the defendant to stand trial
Grand Jury/Indictment
o Group of 16-23 people charged with determining whether there is sufficient cause to believe that a person has committed a crime and should be made to stand trial. This is required for serious crimes tried in federal courts (must have a grand jury indictment)
Entering a Plea
o misdemeanor cases: defendant must enter plea of guilty or not guilty
o felony cases enter plea later at arraignment
Pretrial Motions
Plea Bargains: negotiation between accused, defense attorney and prosecutor…concessions granted in sentencing in exchange for guilty plea
Trial (6th Amendment Rights):
o jury trials not required for offenses that would be punishable by less that 6 months in prison
o defendants may waive their right to jury trial
o typically 12 person juries, but this is not required by law…Supreme Court typically looks for juries of 6
o Unanimous verdict typically required, though the Supreme Court does not require it of itself
Sentencing:
o Probation, home confinement, fine, restitution, work release, imprisonment, suspended sentence (must be fulfilled if probation is broken)
Pros/Cons Prisons
Capital Punishment: typically reserved for 1st Degree murder, though there have been exceptions over the years (for example, treason)
CONSTITUTIONAL LAW
Bill of Rights
First Amendment: addresses the rights of freedom of religion (prohibiting Congressional establishment of a religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.
Second Amendment: declares "a well regulated militia" as "necessary to the security of a free State", and as explanation for prohibiting infringement of "the right of the People to keep and bear arms."
Third Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The only existing case law regarding this amendment is a lower court decision in the case of Engblom v. Carey. [1]
Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.
Fifth Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment. It also prohibits government from taking private property without "just compensation," the basis of eminent domain in the United States.
Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
Seventh Amendment: assures trial by jury in civil cases.
Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.
Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.
Tenth Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are "reserved to the States respectively, or to the people."
Freedom of Speech (what is protected? What exceptions exist?)
Obscenity
Defamation
Commercial Speech
Difference between Clear and Present Danger Test…and Incitement Test
Freedom of the Press v. Prior Restraint/Gag Order
Public Forum (what is…what isn’t?)
Affirmative Action
Tinker v. Des Moines School District
Bethel School District v. Fraser
Brown v. Board of Education of Topeka, Kansas
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