Finals Distraction - Technological Terror

Lord Vader really doesn't like it when people forget to turn off their cell phone at the staff meeting.

Finals Distraction - Ryan vs. Dorkman 2

This lightsaber duel hits the spot on a busy weekend of cramming.

(Hat-tip: Namerz)

The LLS 2007 Spring Criminal Procedure Discussion

Following a tradition begun last semester, Law Law Stud is hosting a discussion for bar courses he is enrolled in. If anyone would like to get a thread going for another bar course the Stud is not in, please advise him.

This discussion will be for Criminal Procedure. Specifically, the Stud is enrolled in Professor Stanley Goldman's class.

On the last day of class, Prof. Goldman handed out a short outline, which the Stud reproduces here as is:

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1. Exclusion (its' Limitations) and the Fruit of the Poisonous Tree Doctrine
   1. The exclusionary rule is one of the constitutional remedies available to anyone who has been personally subjected to an unconstitutional search and seizure, interrogation or identification. The rule gives such individuals the right to exclude the illegally procured evidence from their subsequent criminal prosecution, unless one of the exceptions, limitations or exemptions applies.
   2. General exceptions or limitations to exclusion: (Exclusion is not an available remedy in civil cases, or quasi-criminal proceedings such as deportation hearings. Defendant can only get exclusion if the search violates the federal constitution or a federal statute so providing.)
      1. Exclusion does not apply to grand juries proceedings.
      2. Impeachment of the defendant's own testimony (this exception to exclusion does not apply to coerced confessions or, for the purposes of this examination, to Massiah violations.) Improperly Mirandized confessions, pre or post arrest unMirandized silence, illegally seized evidence and Jackson violations, though inadmissible in the prosecution's case in chief, may nevertheless be introduced as evidence for the purpose of impeaching the "defendant's" testimony if he personally takes the stand at trial and testifies in a manner inconsistent with the unconstitutionally obtained evidence (or silence).
      3. Good faith reliance on:
         1. a statute or ordinance later declared unconstitutional; or

         2. a defective search warrant as a result of insufficient probable cause.

            Exceptions to the Good Faith Reliance on a Defective Search Warrant:

            1. Affidavit so lacking in probable cause no reasonable officer could rely on it.
            2. Warrant is defective on its face (e.g., failure to state with particularity the place to be searched or things to be seized).
            3. Affiant lied to or misled the magistrate.
            4. Magistrate has wholly abandoned his judicial role.

      4. Fruit of the Poisonous Tree: (Excludes all evidence obtained or derived from illgal police act as tainted "fruit.")

         Exceptions:

         1. Free will. Independent Acts that break the chain of taint between the original unlawful police action and the illegally derived evidence (can include the free will of the accused or the witness).
         2. Inevitable Discovery (Including independent source rule.)
         3. Miranda violations - No fruit of the Poisonous Tree exclusion of 3rd party statements or physical evidence.
         4. Knock and Announce violations - No Fruit of the poisonous tree exclusion for all or most evidence discovered in the residence.
2. Search and Seizure Model
   1. Was there State Action?

   2. Does defendant have standing to object?

      Does defendant have reasonable expectation of privacy? A defendant only has standing to object when he/she has a reasonable expectation of privacy in the area searched or the item seized. Seizure of items already exposed to public view implicates no right of privacy.

      Example: Ease dropping.

   3. Did the police have a search warrant?
      1. Was there a probable cause for its issuance?
      2. Did a neutral and detached magistrate issue the warrant?
      3. Was the warrant properly executed?

   4. If there was no warrant or the warrant is not valid then did the search fall within any of the following exceptions (or can the state use the "good faith" defense to exclusion in order to justify the introduction of the seized items?)

      The Warrant Exceptions - Can the search fit squarely within one of the eight narrowly drawn exceptions to the warrant requirement?

      1. Evanescent
         1. Example - extraction of blood for alcohol test
         2. Intrusion must be reasonable
      2. Plain view
         1. Legitimately on the premises
         2. Discovery of fruits or instrumentalities of crime or contraband
         3. In plain view
      3. Consent
         1. Voluntary and intelligent
         2. Third party consent - where two or more persons have or are reasonably believed to have right to use or occupy a piece of property or premises, then either one can consent to a warrant less search and bind the other (unless the opposing occupant is present and inform police of their objection).
      4. Stop and Frisk
         1. Reasonable suspicion to stop
         2. Frisk and pat down for weapons
         3. What if other evidence that weapon is found? Ho much like a weapon could it seem from the outside?
      5. Border Searches
         1. Searches at border do not require probable cause or even reasonable suspicion.
         2. Searches away from border do require probable cause
      6. Hot Pursuit - Real Hot
      7. Search Incident to lawful arrest
         1. Arrest must be lawful
         2. Contemporaneous in time.
         3. Geographic span - the person and his wingspan
         4. More lenient for automobile searches but may be limited in future by the Court
      8. Automobile Exception
         1. Full probable cause, but no warranty required based upon
            1. Exigency of the car's mobility
            2. Lesser expectation of privacy justifies
         2. Warrant less search of the whole car and packages or containers that could reasonably contain the item for which the police had probable cause to look.
3. Pre-Trial identification
   1. Counsel needed at post-indictment line-ups
      1. Not needed for photo line-up
      2. Not needed for handwriting sample, etc.
   2. Denial of due process if line-up is unnecessarily suggestive
   3. If line-up is unconstitutional for either reason then:
      1. Line-up identification is inadmissible
      2. Trial I.D. also inadmissible unless proven independent by clear convincing evidence.
4. Double Jeopardy
   1. Once jeopardy attaches, a defendant cannot be retried for the same offense by the same sovereign after a dismissal, acquittal or conviction not reversed by defense appeal
   2. Separate sovereigns

   3. Jeopardy attaches when jury sworn or first witness takes the stand

      Exceptions:

      1. Hung-jury
      2. Mistrial
      3. Successful defense appeal
5. Confessions - Defendant can object to the admissibility of his confession.
   1. Miranda
      1. Essentials
         1. Custody and
         2. Interrogation
         3. If both a & b are present, then the police must give the Miranda warnings and obtain a waiver.
         4. Waiver must be voluntary and intelligent - Burden on suspect to clearly exercise. Police need not seek to clarify ambiguities.
         5. Edwards
            1. Right to remain silent
            2. Right to counsel
      2. Exceptions
         1. waiver (see above)
         2. spontaneous statement (no interrogation)
         3. not custodial (e.g., probation interviews, tax audit interviews and early in routine traffic stops not considered sufficiently custodial settings - no Miranda warnings required)
         4. use for impeachment (including silence except post-warnings silence)
         5. fruit of the poisonous tree (non-testimonial evidence)
         6. substantial compliance
         7. public safety (not applicable to coercion)
   2. Massiah (Blockburger Limitation)
      1. Represented by counsel
      2. Formal proceedings have commenced
   3. Jackson (Counsel requested but not yet appointed)
   4. Must be voluntary
      1. Coercion.
      2. Not incriminatory. (Immunity)

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Let the discussion commence!

The Second Amendment

The recent mass shooting at Virginia Tech have been occasion for many to think about the state of gun control and the Second Amendment in the United States. As students of the law, Law Law Stud invites you to participate in the discussion.

The Second Amendment is not, as perhaps some would prefer to think of it, simply an outdated relic of the 18th Century. It is not a political compromise of the sort that preserved slavery in the South. It was part of a group of amendments that were ratified by the states as guarantees against the terrifying prospect of an overreaching Federal Government. This group of amendments are now known to us as the Bill of Rights.

Nonetheless, because guns and firearms are the most specifically recited tangible, physical objects, and because they can be used to end lives, they and the Second Amendment are source for much debate.

The Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Arms
First, there is the matter of what constitutes "arms". The modern interpretation is that it means firearms. Given that the Founding Fathers had, less than ten years before the ratification of the Constitution, ended a shooting war with Great Britain, it is likely that they also had such a definition in mind. Since there hasn't exactly been a great public controversy over the right of private citizens to own swords and catapults, we shall focus on firearms.

State vs. People
Second, to whom does this right apply? There are two principal interpretations. The first interpretation focuses on the word "State": Since a State necessarily regulates its Militia, the argument goes, it could dictate the terms of gun ownership. The second interpretation focuses on the fact that the amendment says specifically that "the right of the people to keep and bear Arms shall not be infringed." From a textual position, this second interpretation seems strongest, as it is unencumbered by apostrophes or supporting clauses. From another point, a principal rule of Constitutional Law is that governments have powers, people have rights. This is particularly spelled out in the Ninth and Tenth Amendments.

Militia
Third, what is the point of reciting the need for a well regulated Militia? A principal rule of statutory interpretation is that every word means something. By extrapolation, every clause has a reason. What then is the reason for the reference to the Militia, and what does it have to do with the right of the people? The traditional explanation has been the linkage between the yeomen Minutemen of Massachusetts and their involvement in the War of Independence. The war brought realization to all doubters that, whether federal or local, a free state relies for its security on its militia, or military forces. At the time of the ratification, the United States was still largely in debt, such that the provisioning of military arms was not affordable. In much the same way as ancient Spartan hoplites, then, it made sense for citizens to provide for their own arms. Besides, given the initial battles of Lexington and Concord, it was apparent that private control of military arms kept alive the specter of resistance to any government. Indeed, the nation saw in Shay's Rebellion and the Whiskey Rebellion that armed resistance was credible resistance.

Thus, an armed citizenry not only provided the government with soldiers (a State free of occupation), it also kept government on its toes (a State of free men).

State Power
Fourth, assuming that the Second Amendment, despite its clear language, can be read expressly as granting States power to regulate firearms, what if any impact do subsequent history and amendments have? Bruce Ackerman and Kurt Lash, proponents of "regime theory", hold that the introduction of the Civil War Amendments may require incorporation of the Second Amendment. Incorporation, students of Constitutional Law will remember, is the application of the Bill of Rights against State governments. The Thirteenth Amendment, which explicitly abolished slavery, has been interpreted also to forbid "badges and incidents of slavery". Civil Rights Cases, 109 U.S. 3 (1883). Professor Lash notes that if the right to keep and bear arms is interpreted as a right of self-defense, then any State law which restricts self-defense would violate prohibitions on "badges and incidents of slavery", because slaves were not allowed to defend their persons, nor to hold, much less defend, their own property.

Infringement
Fifth, there is the matter of what exactly "infringement" means. Returning again to statutory interpretation, note that the Second Amendment states that "the right of the people to keep and bear Arms shall not be infringed." (Emphasis mine.) This is a different limiting word than that of the First Amendment, which prohibits "abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Why this difference?

Dictionary.com defines infringe and abridge slightly differently.

infringe

1. (v.t.) to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
2. (v.i.) to encroach or trespass (usually fol. by on or upon): Don't infringe on his privacy.

abridge

1. to shorten by omissions while retaining the basic contents: to abridge a reference book.
2. to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one's freedom.
3. to deprive; cut off.

Law Law Stud takes the position that an infringement is a total abridgment, such that all infringements are abridgments, but not all abridgments are infringements. This seems to make sense in light of how most people tend to think about the difference between Second and First Amendment rights. While most reasonable people may find hate speech disgusting, but protected, most reasonable people would probably tolerate certain aspects of gun control, such as requiring safety education, locks, and automatic but speedy background checks. Certainly, nobody wants a mentally unstable person to have easy access to guns.

Use?
Finally (at least for now), the Second Amendment is interesting in what it leaves out. While it explicitly discusses "the right of the people to keep and bear Arms" (emphasis mine), it says nothing about their use. Presumably, it leaves this to state common law and criminal law. Certainly, killings not justified by self defense would be proscribable. This, of course, seems to make eminent sense, though supporters of gun bans would be livid. Even if we assume, then, that any abridgment would be an infringement, contra the discussion above, and that the Second Amendment can be incorporated against the States, all that it protects is "the right ... to keep and bear Arms," not to use them. In plain English, this means that an individual would have the right to have a gun, and even a right to carry a gun, perhaps even by concealed carry. But that individual might not have the right to use that gun without a license. Since use is not governed by the Second Amendment, then, it is governed by state common and criminal law, and under the doctrine of state police powers, use may be heavily regulated, even to the point where only shots fired in self-defense are ever permissible. Still, that would provide legal cover for those who do use their guns to stop mass shooters before many more are killed, cover that is already available under common sense.

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This promises to be an interesting debate, and Law Law Stud welcomes your thoughts, so long as you do not lose your point in name-calling. Have at it!

Bar Review - Brass Monkey

The last bar review of the semester was a festive occasion for a last hurrah from many 3Ls, and from some non-graduating students as well. This bar review was at the famed Brass Monkey.

Best of luck to the 3Ls, and don't forget us. To everyone else, good luck on finals, and we'll see you at the bar next year!