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British court’s holding (rule of law):
1. Cannot kill an innocent to save your own life (better for you all to die than lower legal principles).2. The captain of the ship’s duty is to sacrifice his life so his crew can live. Doesn’t recognize necessity.
Significance: established a right to life for all under common law.
As tribes get larger, tribes settle into one location. The social bond is through fiefdoms.
Stratification into serfs and lords occurs. Land held in exchange for service from the serfs.
Law = obligations and duties (serfs have a duty to their lord; the lord has an obligation to the serf). Responsibility is the lord and the fiefdoms (who own everything).
They are also the wronged party. Sanction doesn’t work because you can’t kill all the serfs, like would have happened with a tribe. Gives the serfs a dollar value; where civil law comes from, aka compensation.
Each lord was in charge of their fiefdom, they dealt with the law.
William the Conqueror. idea that people are selfish and need to be controlled. God is ultimately in control but the state is a conduit for God’s control. First division in law: state vs. canon (religious) law. Social bond is through nationality, territorial (citizenship). The law is determined by the state. Civil vs. Criminal law: individual is responsible when they commit crime. Wronged party is the state. Sanctions go from probation to the death penalty. Legal system is the circuit courts. royal administrators (judges) to “ride a circuit” of towns and deal out punishment for crimes.
Origin of stare decisis or categorizing crimes and punishments through precedents.
trial by combat was a version that allowed the accused to challenge his accuser to a duel, with the outcome determining the legitimacy of the accusation.
Trial by Advocacy: accused has an advocate, a lawyer.
August Vollmer called for the professionalization of the police. Also established CJ as an academic program at UC Berkeley. Also wanted to educate police officers.
in general, crime was going up dramatically. Crime was the concern of the time.
Law Enforcement Assistance Administration) which gave more federal money to state and local departments. In return, departments had to adopt policies and procedures in line with the National Commission on CJ Standards in order to create uniformity and thereby increase confidence of the public.
Packer was the theorist associated with this.
Goal - to reduce crime.
Why?: Because people will not make good choices, and this will lead to chaos.all crime will increase along with fear. Society will become full of people who will lose their social freedom.
How?: consequences for breaking law (harsh punishments) are used to deter people from committing offenses. assembly line; Leads to a presumption of guilt if still “on the belt.”
Lots of faith is placed in informal fact finding – if arrested and charged you probably did it. Trust is placed in the police and prosecutor.
CC would hate Miranda rights, search warrants, and legal technicalities that can allow the bad guy to walk.
Focus is in the early stages – the decision to arrest and file charges. Goal is then to get a guilty plea. You want to avoid a trial at all costs since it takes a long time and costs a lot of money. Want them to take a plea bargain so they will receive tough sanctions.
Is like an obstacle course. Formal rules to protect individual rights and freedoms make sure you don’t do anything wrong. Don’t believe the police and prosecutor because they’re biased.
Goal: Want the truth about whether they committed the crime or not. Need a trial to get the truth. Experts examine witnesses before giving it to the jury.
They are so careful about sending people to prison because the stakes are so high; you will lose freedoms, meaning everything is at stake. You need formal, strict controls on the system. Operates on the presumption of innocence.
Focus = individual rights. Adversarial proceeding.
1960's - 70’s-----
Balance: Individual Rights v. Public OrderCC or DP?
Balance: Individual Rights v. Public Order
CC or DP??
CC was chosen since crime was going up. Drugs were everywhere. Gangs, drugs, gun problems were abounding. Police hadn’t been able to keep crime under control, switched from DP to CC then. Call for harsh punishments and led to mandatory minimums and a conservative shift.
Increases surveillance for LAWE, decreases judicial oversight, and had much broader implications than previously thought.
Section 214. Pen Register/Tape and Trace – like a wiretap, but only records numbers coming in and numbers coming out of a phone, not conversations. Used to have to get a warrant to tap, the PATRIOT Act removed the warrant requirement for feds. They just have to show the information gained would be relevant to an ongoing criminal investigation. Created to deal with land lines, but expanded to include internet monitoring and computer networks. On a laptop, you can get incoming/outgoing email addresses and the subject line. Surfing the net, you can look at websites they visit.
Section 412. Gives authority to the Attorney General (AG) to detain non-citizens in the US after he finds “reasonable grounds” to think they are a threat to national security. Length of detention: can be indefinitely without trial.
Use of Act: It was used the day it was signed, not just to restore the public’s trust in the government. Lawyer/client confidentiality was thrown out for a terrorist prisoner. Can listen in without a warrant and breach that privilege if “reasonable suspicion” that they are talking about terrorism. If the crime is related to terrorism, an executive order allows secret military tribunals if the crime is related to terrorism. This is not under criminal jurisdiction and only applies to non-citizens, now under military jurisdiction without Constitutional rights. Private trials occur and information can’t be disclosed.
signed/made in 6 weeks. Didn’t speak about the problems that led to 9/11? If old surveillance laws are broken will the new ones stop terrorism? Elimination of checks and balances; courts’ powers were reduced under this. By removing the limits on surveillance laws, you sacrifice civil liberties. Worried that they will permanently replace procedures that used to be safeguards.
2013 the PATRIOT Act is set to expire. USA PATRIOT Act II (2005) made 14 provisions permanent. Some others (206) got 10-year extensions. State/local government responses: over 500 areas are condemning the PATRIOT Act as attacks on civil liberties (8 states). Some have laws banning the taking of FISA requests. But federal law will win out over state. But if PATRIOT violates the Constitution, the Constitution will win.
Half of all violent crimes are???
Murder, rape, robbery, agg assault (least to most).
1. Violent up a percent from 2011-2012. Trends over last 10 years violent crime is down 12 percent.
National Incident Based Reporting System, how is it different from UCR?
Fourth change may be coming many think it will be an increase in crime due to:
1. Reentry of convicts,
2. Illegal immigrants,
3. The usage of the internet which can put people at risk for certain crimes,
4. The surging youth population
Asks people about 6 index crimes (excludes murder) and also simple assault. Done by the Census Bureau who will go to that address. Uses a sample of 41,000 households, asks everyone 12+ years old. Keeps the addresses for 3 years, returns every 6 months.
can’t talk to all the people in a household about all 29 crimes, have to limit it to the 6. Sometimes, people lie/forgot/over report. People don’t know the difference between burglary and larceny. Question wording and language barriers can affect accuracy. Doesn’t include the homeless, illegal aliens, and underreports for young, black males.
Early Years (19th-20th century):
Gun Control Legislation
Took 7 years to get through Congress, done for Brady who was shot during the attempt on Reagan’s life in 1981.
Why Created: to fix problems with the 1968 act, specifically the “lie and buy” system.
DC banned handguns. If you have a legal gun, it needs to be licensed, unloaded, and disassembled/trigger locked. Gunowners said it violated the 2nd Amendment.
Significance: Court found that the right to own firearms is unconnected to the militia. Owning firearms to defend yourself in your home is not restricted and everybody has that right.
Problems: since this ruling was made in DC, it only applies to federal enclaves, not states.
Chicago had a similar law to DC. Same issue, but in a US city that is part of a state.
Holding: states cannot infringe on the right to own guns which is a fundamental right, unless states can show a compelling need legally. If they do place a restriction, it must be reasonable. Only applies to handguns, and states cannot ban all handguns in the home.
the objective dangerousness of a weapon used in violent assaults appears to be a major influence on the number of victims who will die from attacks; the major documented influence of guns on death rate. 70% of murders are committed with guns.
if 10,000 guns were introduced into a social environment where violence assault is a rare occurrence, it will not produce a large number of additional homicide deaths unless it also increases the rate of assault. Where rates of attack and willingness to use handguns in attacks are both high is a change that would produce many more additional deaths.
70% Argument: As the homicide rate has varied remarkably over the last century but the percentage of homicides committed with guns did not (steady at about 70%), the latter figure cannot provide an explanation for the former. America’s homicide rate is virtually independent of the percentage of homicides committed with guns.
In the US, suicides:homicides are 11:6, with 50% of suicides committed by handgun. The instrumentality thesis would seem to state that with fewer handguns, there would be lower rates of suicide by gun (ex.: other countries). This is false; countries know for having very restrictive gun policies, and for having much lower gun prevalence than the US nevertheless have persistently higher suicide rates, notwithstanding that a comparatively low percentage are committed with guns.
Instrumentality principle is false due to the fact that firearms have not become scarce in the population, there has been a decline in criminal gun use, the homicide rate has declined to a level last seen in the mid-1960s, and the percentage of homicides committed with firearms remains within a narrow range that has held constant for a century.
shows that victims who used a gun to resist criminal attack not only did better than victims who resisted by other means but also better than those that didn’t resist at all. 2.5 million times per year DGU (Defensive gun use) occurs.
2. Parents-child relationship: parents have a legal duty to act and protect their child even if protecting from another parent. (Some states have husband-wife duty to act laws).3. Contractual duty to care: applies to day cares, rest homes, lifeguards. If it is your job, you must come to the aid of another
Exception to voluntary acts. Inchoate means incomplete. Law recognizes that society needs to be protected from people that try/tried to commit crime.
Solicitation: “will you” crime is asking someone to commit an offense (ask, hire, encourage another).
Attempt: Intent and a corroborating act. Try to murder, but no bullets in gun to attempted murder.
Conspiracy: “help me” two or more people. Can be verbal, written, electronic; applies to all crimes.
With a helper, try to strangle your ex-husband (you strangle, he holds him down). The helper will get conspiracy and you will get conspiracy and attempted murder.
All murders are homicides, but all homicides are not murders. Homicide means taking the life of another. Only 1/3 types of homicide are criminal.
2 Excusable:3 Criminal:
legal duty/necessity to take the life of another (cop using self-defense).
murder, manslaughter, or criminally negligent homicide. A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person.
Level of Intent:Who Determines and How?:
Common Law Levels of IntentGeneral intent offenses
crimes that have a logical outcome associated with it (serious and non-serious). The Prosecutor has to show that the offender voluntarily committed the act, wrongfulness can be inferred from the judge and jury. The “duh” crimes; throwing gas and a match on someone.
stopped by CPD, 3 gm of coke on you, you get charged with possession. Next time, you have 15 kilos and get charged with intent to distribute/trafficking. Have a higher level of intent that must be shown (act and specific knowledge). (Burglary is simply trespassing with the intent to take something; higher level of intent than simply trespassing).
Model Penal Code Levels of IntentNegligent
Should have been aware of a risk that your behavior created (unjustifiable). Ex.: leaving child in bathtub alone.
Model Penal Code Levels of Intent: Reckless
1st and 2nd degree
1st: premeditation (knowingly, purposely – murder)
2nd: (knowingly – murder). No premeditation. This encompasses heat of the moment crimes.
murder, manslaughter, or criminally negligent homicide.
liable if they occur because the potential harm is enough to hold you responsible (created by Congress because it exposes society to harm or society just doesn’t want offenses to occur, ex. Traffic offenses; bad driving puts everyone at risk, statutory rape).
People vs. Lewis: Lewis got in a fight with a friend and shot him. The friend slit his throat then because of the pain. Cause of death was multiple causes. He was on hook, because his friend wouldn’t have committed suicide had he not been shot.
Proximate Cause: Best fitting explanation.
But For: but for the action, the result wouldn’t have happened.
establishing that your conduct was right under the circumstances; ex.: self-defense.
1. Force has to be proportionate to the threat
2. Force must be immediately necessary. (Necessary, proportionate, imminent threat)
3. Can defend another person, but they must be innocent.
4. Can defend your place of habitation with deadly force, so long as you reasonably believe your life is in danger.5. Can’t defend your property with deadly force unless you are in
any unlawful threat or coercion used by a person to induce another to act (or refrain from acting) in a manner they otherwise would (would not). (This is an excuse).
Not Guilty by Reason of Insanity (NGBRI) if at the time of the crime the person lacked the substantial capacity to know right from wrong or lacked the capacity to conform their behavior to the law. Different from M’Naghten and irresistible impulse because the level of impairment needed is lower. More people can be found to be NGBRI with this. Half of the states use this.
U.S. v Tobias (1981):
DEA put an ad in the magazine High Times selling chemicals to make cocaine. Tobias calls, found it’s hard to make cocaine. Called to cancel his order, DEA guy suggested making PCP; sold him gear and chemicals to him with step-by-step instructions. Tobias called the DEA back 13 times for more instructions. DEA got a search warrant and found liquid PCP, Tobias was sentenced to 15 years. Claims entrapment as his defense.
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