Concept of US Constitutional Law and Court Systems

U.S. Constitutional Law
a)   The court distinguishes a speakers message from the conduct associated with the message by using proprietary and regulatory functions of the government.  There are specific rules related to personal expression, and many are allowed so long as they are reasonable.  The court feels that the threat posed by the speaker is irrelevant and not consequential.  The court uses the absolute approach.  This approach determines if the nature of ones speech falls under the protections of the First Amendment.  If the court determines this fact, then the government and the courts are restricted and cannot intervene (Mason  Stephenson, 2005).  The First Amendment protects an individuals opinions, words, speech, and forms of expression.

b)  The legal distinction between making a threat and expressing a political opinion depends on where the expression occurred.  It is not necessary that the person making the threat be able to carry out such an act.  Fighting words are free and automated responses to a situation or suggestion.  The government does not intervene in this area since the Constitution leaves choices in words at the sole discretion of the individual.  Threats are a different story.  If a threat is intended to incite fear or imply intimidation, then the behavior is then criminalized with regard to its target.  Political opinions are a personal viewpoint in contrast with the majority in the public sector.

a)   Voluntary encounters involve law enforcement and private citizens.  These chance encounters are responded to without fear and with the citizens approval.  Investigatory stops involve the holding of a suspect who is not under arrest (Garner, 2001).  During the investigatory stop, the suspect is questioned and interrogated for possible criminal involvement in a crime.  This method is only constitutional if probable cause has already been determined to exist.  Arrests for the purpose of the Fourth Amendment are done so without a warrant, and they are only permissible if probable cause exists.   The Fourth Amendment does not protect individuals when they have volunteered information publically.  This voluntary information may have been offered through facial expressions or handwriting, which are easily accessible at any time (Mason  Stephenson, 2005).

b)  Reasonable suspicion is based on an entire situation as it is perceived by members of law enforcement.  The totality of an event is examined.  It scrutinizes every circumstance including observations, reports, and operations with regard to the suspect.  Reasonable suspicion is termed to be more than a gut feeling, but not as convincing as probable cause (Mason  Stephenson, 2005).  An example of reasonable suspicion might include an officer who is conducting surveillance in a grocery store parking lot.  He notices an individual walking nervously back and forth in front of the stores entrance.  He also notices a car parked close by with someone in the driver seat.  The officer might have reasonable suspicion to suspect that the two individuals are working together by assuming that the store is about to be robbed.

a)   The Olmstead and Katz cases helped the Supreme Court to determine what constitutes a search.  In 1928, the Olmstead case determined that some forms of electronic surveillance, such as eavesdropping, did not violate the Fourth Amendment.  The Katz case later determined that phone tapping devices were illegal without a proper secured warrant (Mason  Stephenson, 2005).  This form of search and seizure without a warrant was deemed to violate ones Fourth Amendment rights.  The Supreme Court established in the Katz case that a magistrate could have easily issued a warrant with certain provisions attached.  The court decided that electronic surveillance was constitutional if the purpose of such surveillance was done to protect against domestic subversion or foreign intelligence operations.  Domestic subversion requires a secure warrant.

b)  A limited weapons search is another way of referring to the stop and frisk by a member of law enforcement.  This search is a superficial exam conducted by a law enforcement officer.  It examines a persons body surface and clothing to determine if an individual is in possession of any weapons or contraband with regard to criminal activity.  An inventory search primarily deals with automobiles or closed containers found within.  In the United States v Matthewss case, the opening of any closed container was ruled unconstitutional unless the closed container has a lock whereby the keys are available (Mason  Stephenson, 2005).
a)  The Free and Voluntary rule addresses confessions brought about through promises, coercion, or by threats.  This type of pressured confession puts a suspect under a tremendous amount of undue duress.  Interrogators perform this unconstitutional act through depriving the suspect of sleep, food, and water.  It is also done by threatening the suspect with extended prison sentences or through making promises of letting the suspect go home.  The suspect suffers from being put through such an experience.  Some suffer mental breakdowns and become unable to think rationally.  Some suspects develop a sincere distrust for the law and what it represents as a result of the interrogation.  In more serious cases, the suspect may develop a psychological condition known as post traumatic stress disorder, whereby the mental trauma of the events endured linger indefinitely.
b)  The Fifth Amendment contends that no individual should be forced to be a witness against himself in any criminal case (Mason  Stephenson, 2005).  The testimony is a form of communication revealing the thoughts and ideas contained in ones mind.  This information is generally given voluntarily.

Compulsion refers to ones testimony being given by coercion or force.  If an individual feels threatened or forced to give testimony, it can be said that the individual was compelled to participate.  Self-incrimination is the response to a question or set of specific questions that cause the individual to criminally incriminate himself, thus subjecting himself to criminal charges.

a)   An individuals right to competent counsel refers to the legal representative providing an individual with the best of their abilities with regard to a proper defense.  An attorneys competence is equated with how much effort, research, and time is delegated for a case.  Sometimes, attorneys do not put forth the necessary effort needed to provide an individual with an adequate defense.  Examples of situations where competent counsel was not exercised include an attorney not returning calls or meeting with a client, not showing up for court, attempting to pressure the defendant into a plea bargain, and not being prepared for court.  In the latter, an attorney may not be prepared for court if he or she has not reviewed the case, prepared to call any witnesses, is unfamiliar with the witnesses that the prosecution is calling, or refuses to allow the defendant to testify.

b)  Double jeopardy is a legal term used to describe an instance where a defendant is tried twice for the same crime (Garner, 2001).  This practice is prohibited by the Fifth Amendment of the U.S. Constitution.  Double jeopardy provides the defendant with three protections.  The first provision provides that the defendant cannot be tried for the same crime if he or she has been acquitted.  The second provision states that the defendant cannot be tried for the same crime post-conviction.  Finally, double jeopardy exists if the defendant receives multiple punishments for the same crime.

a)  Justice Oliver Wendell Holmes once asserted that police officers could either keep their jobs or talk politics.  Some would have agreed with the assertion, but in actuality, Holmes meant for police officers to leave their personal beliefs outside of the office.  Personal views, including religious and political, can sometimes overshadow the requirements of a job.  Many jobs require that its employees remain neutral and objective.  No one should ever ask another United States citizen to choose between their employment and their constitutional rights.  If ones job requires them to surrender their constitutional rights, then he or she must be working outside of the United States.

b)  Police officers are sworn to uphold the law and to serve and protect the citizens of the community.  It is pertinent that an officer of the law do so without prejudice or bias.  In order to secure the safety of the general public, an officer must sometimes sacrifice some civilian privileges.  Some states provide an officers personal information, such as phone number or address, through public records.  This information can be reviewed at any time by anyone.  This could pose a threat to the officer and his or her family members if a grudge-holding criminal seeks revenge.
Court Systems

a)  The Preamble for the U.S. Constitution ensures that certain rights and privileges are protected. These specific items of interest should not be infringed upon by another individual, a court, or any form of government.  The Preamble is a much needed position in todays world, as the United States is now in dire straits.  The United States has been taken over, more or less, by a socialist group posing to be democratic.  The federal deficit is above and beyond what anyone could ever see as being paid off.  Laws and reforms are being created behind closed iron doors, and then suddenly they are sprung on the American public with the expectation of open arms and smiles.  The economy is down, unemployment is up and continuing to rise, and the Preamble needs to be reviewed by government legislators as a reminder of what their job really is (Cornell University School of Law, 2010).

b)  It is a decided opinion that Article I of the United States Constitution is in need of some revisions.  Sections 6 and 9 need the most work.  Section 6 states that members of Congress are paid for their services.  Members of Congress should do so on a voluntary basis and not as a career venture.  These political fat cats make a living off of forcing American citizens to dance like puppets on a string.  They should be forced to find jobs just like every American citizen.  Working for the government should be a privilege, not a career.  Section 9 should be changed to assert that members of Congress should hold voting sessions in each state before voting on Capitol Hill.  Congressmen should be forced to vote as to how the citizens of their representative state have voted.  This would ensure that at least part of the government is truly representative of the people.

a)  Obamacare is a key item of interest with regard to the current government.  Obamacare is force-fed healthcare for American citizens whether or not it can be afforded.  If Obamacare is passed, America will take yet another giant step towards socialism.  Gallop polls and Associated Press polls have revealed that the majority of Americans do not want this bill to pass.  This bill proposes that all Americans would be required to purchase this health insurance without regard for the ability to pay.  Failure to do so would subject the individual to government issued fines and taxes.

b)  Stare decisis means to stand by that which is decided (Garner, 2001).  Courts must follow by the example that has been set before them in case law.  The Pros of stare decisis include the fact that cases are decided the same for all on specific matters.  The decisions are straight forward with absolutely no exceptions.  The Cons of stare decisis relate to changing times and the evolution of society.  There may be slight differences between a cited case law and a current case being tried.  This may open the door for more cases being brought for appeal.

a)  Before jury service was implemented, a defendants guilt or innocence was determined by barbaric tests.  One test involved binding the defendant and throwing him or her into a lake or river.  If the defendant swam, then he or she was guilty.  If he or she drowned, then they were presumed to be innocent.  This was called the test of cold water.  Another test involved using either a glowing hot iron or hot rocks.  The defendant was forced to hold the hot objects in their hands.  The hands were then bandaged and re-examined in three days.  If infection was present, then the defendant was determined to be guilty.  Modern day complaints about jury service are more focused on loss of time from work, poor or low pay for service, and boredom.

b)  The court normally informs a citizen of jury duty through first class or certified mail.  Potential jury members are given notice at least thirty days in advance and in some states, the advance notice is more than thirty days ahead.  The notice includes the date, time, and place to report for jury duty.  Failure to show up for jury duty can result in a show cause or arrest warrant being issued for failure to appear.

Other fines extenuating from not showing up for jury duty include but are not limited to fines and possible jail sentences.

a)  The role of Prosecutor in the court system is very involved.  The most challenging part of the Prosecutors role lies in proving a case.  A Prosecutor relies heavily on information provided in police reports, conversations with members of law enforcement, and in discussions with witnesses.  The Prosecutor is responsible for representing the state in matters that are in direct violation of state statues and codes.  On a personal level, the prosecutor may experience extreme mental stress as a result of the challenges proposed by the appointed position.

b)  The role of a defense attorney is the most challenging within the court system.  The defense attorney must meet with the defendant, interview potential witnesses, and orchestrate a line of defense that manages to stay one step ahead of the prosecution.  Trials may be short or long and drawn out, but the defense attorney must remain consistent.  The defendant may not be very cooperative with regard to answering questions or attempting to aid in their own defense, which in turn leaves everything on the defense attorneys shoulders.  Finally, the most challenging role as a defense attorney deals with representing a client who is most likely guilty, but has pled innocent.

a)  A judge receives training through his or her legal experiences in the legal system.  Most judges are attorneys that have attended accredited law schools.  Their knowledge of the law and how to interpret the law is vast.  Judges must remain impartial and only rule as the law sustains.  A judge must maintain a high level of respect not only within the court system but within the community as well.

b)  The most challenging role for a judge has to be in staying awake.  Judge Ito was viewed, during the O.J. Simpson trial, asleep at the bench.  Long trials test the human side of all involved, including judges.  A judge may not agree with a jurys verdict in some cases, whereby the judge may exercise the right to vacate the verdict and assert his own ruling in the case.  A judge in some cases is responsible for handing down a sentence for a defendant who has already been convicted of a crime.  This may prove difficult for a judge if the defendant is a repeat offender.  Tougher sentences do not always work.

a)  Bail is a monetary pledge made to the court guaranteeing an individuals future appearance in court on a specific date and time.  The concept of bail provides a tangible promise of participation in the legal process as it pertains to an alleged criminal act.  Bail is based on ones past criminal behaviors and history, criminal charges pending, and level of flight risk.  A magistrate or judge makes the determination if bail should be extended to the alleged criminal pending trial or not.

b)  The best way to handle bail in a situation involving a suspect who is a possible flight risk or shows potential to re-offend is to deny bail.  Bail is extended to a defendant at the discretion of the court or court appointed representative.  Higher bail is sometimes issued to individuals who are flight risks.  A judge should not be held liable for the conduct of a suspect who was released on bail because a judge has no real way of knowing what or how a suspect will behave.  Judges and court officers are not psychic.  When a person agrees to bail, the person swears, or promises, the court to keep the peace pending the upcoming trial.

a)  There are many pros and cons that come with plea bargaining.  On the pro side, plea bargaining saves the courts much wasted time.  It also saves the taxpayers a great deal of money.  Court dockets are not as tied up and weighed down.  Also, a defendant may be able to get a reduced or lesser sentence by agreeing to a plea bargain.  On the down side of plea bargaining, some people who end up going to jail are truly innocent, but they pled guilty out of fear.  Intimidation is a big reason as to why some people accept a plea agreement.  Some defendants feel pressured into taking the plea bargain, whether it be pressure from the prosecution, family, or their own defense attorney.

b)  The decision making process of the jury is motivated by many factors.  Some defense attorneys instruct their clients as to which jurors to try to make eye contact with.  This is sometimes a means used to relay to the juror that the defendant is a human being.  Prosecutors and defense attorneys both use opening and closing arguments as a way to sway the jury to see the case from their perspectives.  Some statements made in court are ordered to be stricken from the record, and the jury is instructed to disregard the statements.  However, once something is heard, it will be retained in ones subconscious and play a significant role in the decision making.

a)  Impartiality with regard to treatment in criminal sentencing does exist in Americas court system.  Unfortunately, race is the unspoken motivating factor.  With regard to ones criminal history, it is more likely that an African American will have a longer criminal history than a Caucasian individual.  This is a prime example of impartial treatment in sentencing.  As a result, the nations prisons are overcrowded.  The overcrowding is putting more dangerous criminals back out onto the streets without having completed even  of their court ordered sentence.  America is becoming a threat to itself.

b)  The philosophy of Deterrence makes the most sense when reviewing the five philosophies on punishment.  Deterrence is constructed to prevent crime.  More education needs to be implemented within communities as a means to lower and drive down the crime rates.  Neighborhood watch programs should be eagerly pursued by individuals within communities and towns as a way to look out for one another, and to show potential criminals that their behavior will not be tolerated.  Most importantly, public school systems should encourage school board members to approve and pass a curriculum that teaches children about crime and its consequences.  This should be started in kindergarten if not sooner.

a)  A case pending appeal takes more time and effort than imagined.  A writ of certiorari demands that the lower court provide the higher court a particular case for review.  A writ of habeas corpus is ones last opportunity for appeal.  An individual has the right to appeal if any one of the three items exists.  If a mistake was made, then one can appeal.  If a mistake was made that negatively affected a defendants trial, then he or she can appeal (Mason  Stephenson, 2005).  Finally, if an objection was presented by counsel and was overruled, then this serves as a potential basis for a defendant to appeal.

b)  Some juveniles should be tried as adults in an adult court of law.  Some juveniles have a very long criminal history.  With that in mind, the juvenile court must determine if the juveniles criminal history coupled with the nature and severity of the crime committed would be better tried in an adult court.  A juvenile court can certify a case to a higher court.  Some juveniles are repeat offenders who are proving to be nothing more than a drain on society.  Some juveniles are unresponsive to their parent or parents, grandparents, school officials, and probation officer, but a juvenile should be made to adhere to a court of law.


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