Term
| What are the 4 types of laws? |
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Definition
Constitution
Statutes
Ordinances
Common Law |
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Term
| Types of law: Constitutions |
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Definition
Both state and federal
Establishes structure
(Separation of branches of government and separation of responsibilities)
*Women voting example* |
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Term
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Definition
Written Law
Passed by Legislature (US Congress, State Legislature)
Has to be state or higher to be a statute etiquette |
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Term
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Definition
Written Law
Passed by legislative body
Lower than a state (county, city, water district) |
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Term
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Definition
Not passed by anyone
law based on decisions in other similar cases |
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Term
| In regards to types of laws, which law wins? |
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Definition
1. Federal Supremacy (if you have a conflict between the feds and the state, the feds win. Feds and city, feds win)
2. Constitution (Constitutions are always the highest. If you pass a law (women can't vote in city of Maryville), the constitution wins and can overturn that state law.
3. Statute
4. Ordinances
5. Common Law |
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Term
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Definition
Courts have the right to declare statutes unconstitutional
If there is a conflict, the constitution wins |
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Term
| What are the 2 classifications for laws? |
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Definition
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Term
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Definition
Government prosecutres (not by the injured party)
Punish for criminal activity (existing)
Purpose: Punish
Plaintiff: Government (of some type)
Burden of Proof: Beyond a reasonable doubt
Jury Vote: 12/12 |
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Term
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Definition
Allows victims to recover money for the damages they suffered
Brought by the victim not by the state
Purpose: Money
Plaintiff: The injured
Burden of Proof: Preponderance of the evidence 51%
Jury Vote: 9/12 |
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Term
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Definition
Example of State v. John Deerslayer
"Not at Night"
(search warrants can't be executed at night)
6:43 when the sun went down
6:54 when they executed the search warrant
Defenition: "Absence of natural light"
Had to manipulate the definition to their advantage |
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Term
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Definition
Literal meaning
Generally accepted meaning |
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Term
Legislative Intent/ Purpose
Why was it adopted? |
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Definition
| Construe the words so it fits an explanation |
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Term
| What are the 2 kinds of state courts? |
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Definition
| Trial Court and Appellate Court |
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Term
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Definition
First level of litigation (where we commence lawsuit)
Determines the FACTS
They decide what happened |
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Term
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Definition
Reviews trial court decisions
Look at what happened at trial court (typed transcript of everything said)
Decide questions of LAW rather than FACT |
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Term
| Writ of Certiorari (by request) |
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Definition
| MO supreme court to US supreme court by REQUEST |
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Term
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Definition
Original Jurisdiction
Must be in supreme court
File lawsuit here, and whatever they say goes. NO appeals.
Who does this happen to?
1. Lawsuit between 2 states
2. Lawsuit between U.S. and state
3. Involve ambassadors, minister, etc. |
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Term
| Diversity Jurisdiction (Federal) |
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Definition
| Plaintiff and defendant are from different states AND Claim exceeds $75,000 |
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Term
| How is venue determined in a case? |
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Definition
Choice of state:
DEFENDANT'S Residence
Where the incident occured
Where land located (ownership) |
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Term
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Definition
1. Petition/ Complaint
2. Answer
3. Discovery
4. The Trial(motion for new trial, appeal)
5. Enforcing a Judgement |
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Term
| Civil Procedure: Petition/ Complaint |
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Definition
Always filed by injured party (plaintiff)
Plaintiff's view: Just tells the facts from the plaintiff's perspective
Reason for loss/ fault has to be stated in the petition |
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Term
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Definition
In response to the petition
Defendant's view of the facts
Areas of agreement and dispute identified |
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Term
| Civil Procedure: Discovery |
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Definition
A process by which we find out all the information BEFORE a trial has to take place
Interrogatories (written questions asked of the OTHER PARTY; obligated to tell you everything and can go to jail if they don't; part of the reason we do this is to get settlements)
Depositions (Oral questions, bring room, put under oath, with a court reporters and you answer questions; asked of the OTHER PARTY OR WITNESS) |
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Term
| Civil Procedure: The Trial |
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Definition
If the problem isn't resolved in discovery, then it goes to trial
jury/non-jury (plaintiff decides if they want one)
Evidence received
Argument heard
Verdict (decision)
--Jury or judge comes back with a decision; in order to win on the civil side, you need 9/12 jurors to agree |
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Term
| Civil Procedure: The Trial: Motion for New Trial |
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Definition
Filed by the party that thinks the judge did something wrong (therefore going to appeal)
filed prior to appeal
Gives the judge a chance to correct the mistakes that happened at trial
--if judge says they're right, the case gets re-tried with new jurors; 99 times out of 100, the judge will tell them to go to the court of appeals |
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Term
| Civil Procedure: The Trial: Appeal |
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Definition
A review of a trial court actions
Did they apply the law correctly
This assumes that it has already been to court, judge gives decision, plaintiff wins, and defendant has to give the money- force defendent to pay plaintiff |
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Term
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Definition
Writ of Execution
Garnishment |
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Term
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Definition
Take property that is in the possession of the defendant
Sell it until the plaintiff has his money |
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Term
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Definition
Property of the defendant in possession of a third party (paycheck)
Can only take 25% of paycheck
Don't have to tell the defendant in advance (bank account: no limit)
Landlord example (take down payment from the next renters to give to defendant) |
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Term
| What are the 3 separation of powers? |
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Definition
Legislative
Judicial
Executive |
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Term
| Business and the constitution |
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Definition
Separation of Powers
Checks and balances
Federal Supremacy
Federal Regulatory Power
Spending power |
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Term
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Definition
| General rule that if you have a conflict between a statute passed by a state and the Federal Government, the Feds win |
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Term
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Definition
Works on things like the Powerball
Works under the Commerce Clause
---THe fed Gov has the right to regulate (inspect) anything that is in interstate commerce (anything that goes across state lines)
IRS (internal revenue service)
---Have the power to tax you
---Revenue raising proposition (designed to raise revenue) |
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Term
| Examples of Spending Power |
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Definition
Click it or Ticket
Budweiser giving money to state of Missouri to not pass open container law |
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Term
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Definition
Debate over the large Corporation
--Microsoft
--Have significant advantages
Corporate dishonesty
Is a large corporation helpful?
--It can be
Allows for integration of assets
Accountable only after the fact- PROBLEM
Stakeholder Theory
-- How do you make a decision based on a corporation: there are 2 theories |
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Term
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Definition
Consider Multiple Inputs
--How this decision affects a lot of people;
---the interest of the stakeholders; $$$$$$$$
---The interst of the others who deal with the corporation
Profit Maximization Theory
--Shareholder Theory
--Make as much money as you can
--Seek maximum long-term profits |
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Term
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Definition
| Ability to control irresponsible corporate behavior has limits |
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Term
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Definition
Based on what punishment was available (what COULD the judge/jury have done) NOT what punishment was received
1. Felony- Can send person to PRISON
2. Misdemeanor- Possible jail but not prison time
3. Infraction- Only punishment is a fine |
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Term
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Definition
Plaintiff in Criminal Cases:
--State, City, Etc.
--NOT A PERSON
Defendant:
--Always the bad guy
Burden of proof:
--Beyond a reasonable doubt (not guilty until proven guilty) |
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Term
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Definition
Criminal Act
Criminal Intent
HAVE TO HAVE BOTH IN ORDER TO BE CRIMINAL |
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Term
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Definition
KNOWINGLY committed criminal act
Murder, stealing, etc.
Reasonable person's test
Acted RECKLESSLY (not careful)
--Classified as Manslaughter
-No intent crimes
--speeding |
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Term
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Definition
| Look and see what the statute says to see if it is a justifiable crime |
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Term
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Definition
You have to have the intent required by the law
--If charged with murder, you have to prove that you had that level of intent in the murder statute
Speeding: you don't have to have intent
Criminal Intent is Required- KNOWINGLY committed criminal act (murder, stealing, etc.)
--Acted recklessly (not knowing)
----reading paper while driving; texting while driving, etc.
No intent crimes |
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Term
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Definition
Look at the act that was done
Primary way to figur out the INTENT
--If ORDINARY PERSON had completed the same ACT, would the person have INTENDED to commit a crime?
----If yes, then you have criminal intent
There are 3 exeptions where you don't use reasonable person's test:
1. Juvenile
2. Mental Incapacity
3. Intoxication |
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Term
| What are the 3 exeptions in which you do not use the reasonable person's test? |
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Definition
1. Juvenile
2. Mental Incapacity
3. Intoxication |
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Term
| Juvenile Exeption to Reasonable person's test |
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Definition
Based SOLEY on age
Being able to prove that you are a juvenile in that state
-- In MO: under 17
--Based on where you did the act
As long as you remain a juvenile, you cannot form intent and CANNOT be convicted of a crime
----NO intent= CANNOT be guilty
-------EXCEPTION: Judge has to classify juvenile as ADULT
Age at the time of the incident |
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Term
| Mental Incapacity (insanity) exemption to the Reasonable Person's Test |
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Definition
Looking at the mind of the defendant
No longer looking at the REASONABLE person
Are there people that have mental problems that are still sane? YES
Don't use reasonable person's test, use the M'Naghten test |
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Term
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Definition
Is NOT to determine whether the person has a mental problem
it is to determine whether the mental problem is so bad that they can't form intent
--"The defendant did not understand the consequences of act"
If mental incapacitated to the point of M'Naghten= NOT GUILTY
Example: Twinkie Defense:
--Temporary Insanity
--Gets a medical doctor to testify that due to the amt. of sugar he consumed that day, the synapses in his brain couldn't close properly, so even though he killed all those people, he didn't understand the consequences of his actions, and therefore was dropped of all charges... |
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Term
| Intoxication (drugs/alcohol)- Exeption to the reasonable person's test |
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Definition
Still use the M'Naghten test
Result of intoxication did not understand nature of the act
The problem with this defense is self-induced intoxication is NOT A DEFENSE
Ex. If I go home and have 12 beers, and shoot my wife, it doesn't matter; if my punch was spiked with LSD= non-self induced intoxication, it matters and CAN be used as a defense |
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Term
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Definition
Only 3 options:
1. Not meet M'Naghten:
Help? NO
Have to switch to reasonable person=guilty
2. Meet M'Naghten, but self-induced
Help? NO
Have to switch to reasonable person=Guilty
3. Meet M'Naghten-not self induced
NO INTENT=NOT GUILTY |
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Term
| Criminal Procedure: Felony |
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Definition
-Initial Charge
-Warrant
-Arrest
-Bond Posted
-Arraignment
-Preliminary Hearing
-Felony Information
-Guilty/Not Guilty/ NGRI
-Discovery
-Jury
-Verdict
-Motion for New Trial
-Appeal
-Misdemeanor/Infraction (as opposed to a FELONY)--start with "information" NOT preliminary hearing and before |
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Term
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Definition
You have the right not to be protected from ALL searches and seizures, but you have the right to be protected from searches and seizures that are UNREASONABLE
Starting point from search and seizure is a search warrant
--Comes from an 'affidavit'
--Probable cause to believe
--Search Warrant |
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Term
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Definition
Comes from an 'affidavit'
--A written statement
----"I was in Johns house earlier and he sold me some cocaine"
Probable cause to believe
--If the judge has probable cause to believe evidence is there, then he is going to let you search
Search warrants are done BEFORE the search, not after |
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Term
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Definition
Where can you look?
What can you Saize? (and use against them in a court of law?
Example: John Defendant
Search the home of John Defendant because there is PROBABLE CAUSE that he has stolen shotguns in the house (probably cause tells us where we can search; your search is driven by what the probably cause is
You're trying to search the largest area you can for the smallest thing you can (driven by what the affidavit says)
You FIND:
-Cocaine in jacket pocket in bedroom (no; shotgun wouldn't fit in pocket of jacket, so they aren't authorized to look in the pocket)
-Marijuana Plant in hall closet (yes because the closet is big enough for a shotgun to fit through)
-Dead Girlfriend in chest freezer (maybe: would shotgun fit in freezer?)
-NO shotguns found) |
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Term
| Times you don't have to get a search warrant |
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Definition
Plain View Exception
Conscent Exception
Search Incident to Arrest
Automobile Exception |
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Term
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Definition
Cop has a right to be there
Could tell it was illegal |
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Term
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Definition
| Person under question gives conscent for cop to search |
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Term
| Search Incident to arrest |
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Definition
Person is under arrest and the officer can pat down the offender for his own protection from weapons or harmful items
Designed to protect officer
Can take things out of pockets that could potentially be of harm to the officer
Reach and control
once the officer is safe the search stops |
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Term
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Definition
If you're dealing with a motor vehicle, you don't have to get a search warrant
Probable cause to search--has to follow search warrant rules (can't search for alchohol in a small ashtray b/c it wouldn't fit) |
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Term
| Fourth Amendment Application Examples |
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Definition
Driving Auto- speeding
There is alcohol on breath- underage- not DWI
Marijuana under seat (clear plastic bag)
Dead boyfriend in trunk
CAN search car b/c she is a minor with alcohol on her breath |
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Term
| What is the chronological proceedings when you get pulled over? |
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Definition
1. Seize the evidence (4th amendment)
2. Once you have the suspect item out of the car, you're going to ask defendant about it (5th amendment)
3. Once you've done both of those things, the next thing you do is go to trial (6th amendment) |
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Term
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Definition
Right to remain silent
You do NOT have to incriminate yourself
Rights only need to be read when taking a statement from the defendent
Protection from COMPELLED TESTIMONIAL SELF-SELF INCRIMINATION
NO protection, no 5th amendment rights for things like:
-Fingerprints
- Blood/DNA
-Handwriting
-Voice
-Hair |
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Term
| When is the only time you need your rights read to you? |
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Definition
If a statement is being taken from the Defendant
In most MIP cases, you don't take statements
If you're being interrogated, they HAVE to ready you your rights
If you aren't mirandized, the only thing that happens is they have to throw away the statement |
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Term
| You have no protection of 5th amendment rights for things like: |
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Definition
-Finger prints
-Blood/DNA
-Handwriting
-Voice
-Hair
Even if they refuse to give those things, they can still be taken by force
This can be done becuse they aren't asking about the crime or if they did it, it's just evidence |
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Term
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Definition
Trial rights
Right to confront witnesses
Right to an attorney
Right to a speedy trial |
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Term
| If you are suing someone in civil court, one of the places you can bring your lawsuit is the state in which applies to the defendant? T/F |
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Definition
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Term
| Search and Seizure falls under the 6th amendment? T/F |
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Definition
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