If you were on the U.S. Supreme Court, would you consider limiting the application of the exclusionary rule to certain types of crimes (such as misdemeanors or non-murder cases) or abolishing it altogether? Why or why not? (500 words).
If I were on the U.S. Supreme Court, I would not consider limiting the application of the exclusionary rule to a limited type of crime. In fact, it is much more important, I believe, to apply the rule to the most serious of crimes. The exclusionary rule has really been around since the early 1900’s but was only applied to the courts in the federal jurisdiction. Then, in 1961, in the case of Mappvs Ohio, the Supreme Court rule that it applied nationally, to all jurisdictions, including state and local courts. In the event that evidence is obtained illegally, it will fall under the “exclusionary rule.” This means that the evidence, if obtained illegally, cannot be used to convict the defendant—it is “excluded.”The exclusionary rule was made by the Court, but is essentially based on the Fourth Amendment right against illegal searches and seizures by law enforcement. It is not a written law, but is everyone’s Constitutional right.
The Fourth Amendment protects citizens from police or other law enforcement personnel from merely bursting into someone’s home without a warrant and search what and where they choose. There must be either the sign that something illegal is happening illegally, such as screaming or a fugitive running into the place. But it is more than this. It also is a protection against searching a person for no good reason or taking property to possibly be used in a criminal case, without the proper procedures. It protects everyone, both guilty and innocent. But, the most important thing about the exclusionary rule is that the protection is there and sanctioned by the Constitution and the Courts.
I believe that if the evidence is there and the prosecution’s case is solid, there is no need to violate anyone’s rights. Whether someone is accused of a misdemeanor or murder, the Constitution is not applied differently. Law enforcement must abide by the Constitution, and the Court’s direction just as the general public must. When the laws are “bent” to accommodate one group, or to “sneak in” evidence that was illegally obtained, it erodes the rights of everyone. In a serious criminal matter, it is extremely important that all the laws are followed. If even one person’s rights are stomped on, where would it stop? In other words, if illegally obtained evidence, no matter how “damning” is let in to convict a murderer, what about a burglary case, or petty theft?
In the last decades there have been some exceptions, or erosions to the hard and fast exclusionary rule. There has been the “good faith” exception in the case of U.S. vs Leon in 1984, where the warrant had an error, but the police did not really know about it when they found some marijuana in Leon’s home. That is understandable, but still brings up concerns in my mind. What if the warrant has the totally wrong name and address and causes the police to bust into the wrong house entirely? Would that be excused as a “good faith” error if something was found? There must be a limit to ensure the good conduct of law enforcement and the rights of everyone.
In the last few years, the technology that has been and continues to be developed brings up a whole new field of how searches and seizures will be looked at in court. It brings up the questions of searches of cell phone calls, computer memories and much much more. The law must still prevail, even as the world and the country changes technologically.
The Constitution does not specify that only certain people are subject to illegal searches and seizures. I would not make any exceptions and would follow the previous Court decisions and the Constitution.
Cornell University Law School
Legal Information Institute
Are there better ways to ensure that police protect our Fourth and Fifth Amendment rights than “letting the criminal go free because the constable blundered?” If so, what are they and how might they work? (500 words)
I do not believe that there are better ways to ensure protection of rights, than to recognize the rights under our Fourth and Fifth Amendments. If one person goes free because of a mistake, it is unfortunate, but that is the entire point of the protection. It is up to the prosecution to do its job and to make sure that all the “t’s” are crossed and the “i’s” are dotted. There is a phrase used called “the slippery slope” which means that if one thing is allowed wrongly, it would only start a rash of other wrong things being done. It would be the peoples’ rights sliding down the “slippery slope.”
There are of course, exceptions to every rule. The Courts have ruled that a mere typographical error would not negate a search warrant or a seizure that was an honest mistake. But, these exceptions should be very narrowly construed and closely watched. One small exception can turn into many, again referring to the “slippery slope” concept.
The common public response to these illegal or erroneous searches and seizures is “if a person is innocent, what does it matter?” But, in reality, it matters tremendously. Without our rights to the privacy and protection anyone could have the police stop the car and search through their luggage and glove box. Anyone could be sitting in the house watching television and have the police burst in and go through their bedroom and dresser drawers, pockets and handbags. In this country, we are protected against such things happening.
We ultimately have to depend on the Constitution and the Courts when it comes to our rights and the protection thereof. To set any of it aside and come up with an alternate plan would be a mistake. “To let a criminal go free…” means that the police would make the ultimate decision about whether a person is, indeed, a criminal. That is not their job. A court is the place where a person is tried and convicted, not during a possible arrest. It is probably not necessary to repeat the basic idea that everyone is innocent until proven guilty. That idea of innocence must be protected no matter what the police believe or expect to find. There are many things in place which allow evidence to be seized and used against a suspect. There is the “plain sight doctrine” which allows police to use evidence they find in plain sight. Of course law enforcement can also obtain a valid warrant, or get consent to search a car, a home or whatever.
Setting aside these rights would be totally wrong and substituting a different system would be to deny everyone’s Constitutional rights.
Cornell University Law School
Legal Information Institute
1. Discuss in detail whether illegal drug use, prostitution and gambling fit the seven elements of a crime from Chapter 2. Include in your discussion whether these three crimes should be considered mala in se or mala prohibita. (respond with a minimum of 250 words)
Harm, Legality, Actusreus, Mensrea, Causation, Concurrence, Punishment
Illegal drug use, prostitution and gambling are often referred to as “victimless” crimes because they do not directly affect a person or entity as would a robbery or an assault, for instance. There are many more, such as vagrancy, public nudity and more. However, these actions would still meet the seven elements of a crime. Of course, they are illegal, involve an action (actusreus), a mental knowledge of the crime and all the rest. But, the big question of course, is…where’s the harm?
If someone chooses to prostitute him or herself, and someone else wants to pay, where is the harm? It is the harm to society when this type of thing is allowed to continue. People use prostitution often as a way to obtain money for drugs. Another harm is that pimps often have women or even men who are virtually forced to prostitute and give the money up to the pimps. It is a violent profession fraught with opportunities for physical harm, not knowing who may be intent on harm.
Illegal drug use is also in the same category. It is argued that drug use does not directly harm people, but of course, that argument would be difficult to sustain looking at heroin junkies or meth addicts. Naturally, illegal drug use can also mean the “social” user of marijuana which is also illegal. But, drug users often turn to crime to get money for drugs. There are secondary victims and often the “war on drugs” or the “war about drugs” can result in extremely serious crimes past misdemeanor theft, up to and including murder. Those that advocate legalizing drugs must consider the huge impact that might be on an individual that has the money to buy a dangerous drug and OD’s. Would that also include legalizing, or making available controlled substance drugs that require prescriptions, such as Xanax, Vicadon, and more? People trust the government and the laws to protect us against things which might harm us. That sounds simple, but what about regulating ammonia tanks that go down the railroad, factories that spew black tarry smoke and more? Asbestos lined buildings? These are harmful and we do not want to be exposed to them, nor our loved ones. It is similar to being protected from harmful illegal drugs.
Gambling must be controlled, although it is legal is some jurisdictions. It is illegal in other areas. Illegal gambling can result in people being cheated, taken for all their money and create a geographical area that some say, will bring in a “bad element” to the community. Where there is uncontrolled gambling, there could be “fixed” slot machines or roulette wheels. But, more than that, gambling in the “raw” form such as bookies involved with gambling debts, could result in violence with the collection of these sometimes huge debts.
These three above mentioned crimes are considered “mala prohibita” because they are human made laws and not evil within themselves.
Note: This comes from the information in the text and my own opinion. I did not use an outside source.
2. Explain the concepts of legal precedent and stare decisis. (respond with a minimum of 150 words)
Stare decisis is Latin for “to stand by that which is decided.” It is a principal in our country that means the decisions made by the courts are followed by the following courts. When a certain issue has been settled already by a court, the doctrine of stare decisis dictates that other courts should not depart from that decision. This makes the court system stable, because otherwise, it would be an impossibility to know what is permissible under the courts, or how any one particular court will interpret a rule or law. This makes it more clear to anyone who practices in the court system, whether lawyer, judge or prosecutor, just how the courts view a certain issue. Legal precedent is important because it is a guiding tool for those who have to work in the court system. In any one particular case, previous decisions would be an indication of how the court at hand would issue its decision.
On the other hand stare decisis is not absolute. Sometimes the courts do overrule a previous decision because of the change in the law, a disagreement with the previous court, or quite frankly, a change in the way the public views a certain issue, such as in the area of slavery and more recently, civil rights. A case can also be overruled as was said previously, when the laws change and the courts are faced with possibly similar facts under a different law.
That being said, it is quite difficult task to have a legal precedent overruled, because the whole idea of stare decisis is stability and predictability in the legal system. When a court decides a matter, there can be confidence that will likely remain as the court’s opinion and can be relied upon, short of something very unusual happening.
Cornell University Law School
Legal Information Institute
3. Describe the procedural rights in the Fourth, Fifth, Sixth, and Eighth Amendments. (respond with a minimum of 400 words)
Procedural due process must be followed in all government procedures which could possibly take away someone’s rights—criminal or civil rights. It could be something a serious as a murder trial, or as common as a hearing on unemployment benefits. Basic due process include being heard by an impartial court or hearing tribunal, and proper notice of the proposed action. They include an opportunity to be heard, to present evidence, to be represented by counsel, and many more procedural rights. They flow from the Bill of Rights, including the Fourth, Fifth, Sixth, and Eighth Amendments.
The Fourth Amendment provides ultimately, that a person have a right of privacy and freedom from unnecessary invasions of that privacy. It prohibits illegal searches and seizures. This is probably one of the most litigated amendments in that it speaks to the gathering of evidence many times and whether or not the evidence was legally obtained. If the accused offender can prove that the police did not follow the law in gathering evidence, it cannot be used against the suspect. There are many “in’s and out’s” of what is allowed and not and it constantly evolves as court challenges are made.
The Fifth Amendment provides a prohibition against double jeopardy, self-incrimination, and prohibits the deprivation of life, liberty or property without due process of law. This has been interpreted thousands of times to include the right to be advised of these rights whenever taken into custody and many other interpretations. It also has been applied to the states as well as to the federal government, so the states and other jurisdictions must follow these court decisions interpreting this amendment. Basically, this amendment outlines the limits to police procedure when addressing a criminal matter.
The Sixth Amendment guarantees the right to a speedy and public trial, an unbiased jury of peers, to be informed of the crime accused, and be able to confront his or her accusers and witnesses. It gives the accused the right to be able to make witnesses appear whether they choose to or not, and to have effective assistance of counsel. Many people who are convicted of a crime, later invoke the Sixth Amendment to later say that they did not have competent counsel representing them during their legal proceedings. There have been a number of cases involving the right to confront witnesses which involve child victims and whether they should have to be present in the courtroom actually testifying against the alleged perpetrator of the crime against them. In almost every case, the courts have ruled that this right is sacrosanct.
The Eighth Amendment forbids cruel and unusual punishments, which are often interpreted on a case by case basis. However, some punishments are forbidden totally, when compared to the crime or the competency of the offender. At first, the Eighth Amendment was applied only to the federal government, but now applies to the states as well. “Cruel and unusual” is a difficult concept to describe, but the Supreme Court has described sorts of punishments that apply, such as arbitrary punishment, patently unnecessary punishment, or torture. The death penalty is often said to be in violation of the Eighth Amendment by its very nature.
4. In response to the sexual assault and murder of 7-year old Megan Kanka by a convicted sex offender out on parole and the public uproar that ensued, the state of New Jersey enacted “Megan’s Law.” The law, as originally passed, required sex offenders, upon their release from prison, to register with New Jersey law enforcement authorities, who are to notify the public about their release. The public was also to be provided with the offender’s name; a recent photograph; a physical description; a list of the offenses for which he or she was convicted; the offender’s current address and place of employment or school; and the offender’s automobile license plate number. Currently, all 50 states and the federal government have Megan’s laws that require sex offenders released from prison to register with local law enforcement authorities. Megan’s laws are not uniform across states. For example, not all states require active community notification; many of them (including the U.S. government) only make the information available to the public. Research your state’s Megan’s Law. Based on the ideal characteristics of a criminal law (see pages 96-97 in the text), is Megan's Law a "good" law? Discuss each characteristic as it relates to the statute. (respond with a minimum of 250 words)
I live in Tennessee.
The ideal characteristics of a criminal law are
Politicality, specificity, regularity, uniformity and penal sanctions. Tennessee’s version of Megan’s Law, Title 40 Criminal Procedure Chapter 39 Sexual Offender Registration and Monitoring Part 2 --Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 is good law according to these characteristics. It is a legitimate source of criminal law as passed by the Tennessee legislature, and the scope of the law is specifically defined and the crimes covered by the “sex offender” law. The definition of violent sexual offenders and non-violent is set out by the law, listing the crimes under the law that would fall under each category.