M1: In-class exam correction

Correction M1 in-class exam (Nov. 2014)

A motion to suppress is a motion usually filed by the defendant before trial / during the preliminary hearing to remove incriminating evidence against him on the basis that it has been obtained illegally, that is to say in violation of the Fourth Amendment to the U.S. Supreme Court.

Unless it grants cert, the USSC will probably not agree to review a case, as a writ of certiorari is the most common route to bring a case to the attention of the Supreme Court Justices.

The role of the Grand Jury is to examine whether or not there is probable cause that is to say sufficient evidence against the defendant to indict him.

To reverse and remand is a phrase which means that the higher court comes to a decision opposite to that of the lower court and sends the case back to the lower court for further proceedings.

The purpose of a dissenting opinion is to put forward arguments that contradict the majority opinion showing that the losing party obtained the support of some Justices, and that lawyers will be able to refer to in future cases.

A motion to dismiss is a motion usually filed by the defence before trial in order to have the case dismissed on account of a procedural mistake. 

A writ of certiorari is one of the three ways along with a writ of appeal and a writ of habeas corpus, to petition the USSC to review a case.

An information is a document in which the prosecution establishes the charges against the defendant in order to indict him. / An information is a document drafted by the prosecution in order to indict a defendant.

During the preliminary hearing, the prosecution will attempt to establish that it has probable cause to believe that the defendant is guilty and that the latter should stand trial.

Pursuant to the adversarial system, the defendant has the privilege of cross-examining witnesses for the prosecution and also to bring his / her own witnesses to challenge incriminating testimonies and provide exculpatory evidence.

Text: United States v. Jones

1. The parties in this case are Jones, (the respondent), who was originally convicted of drug trafficking, and the U.S. who petitioned the USSC on a writ of certiorari.
2. The USSC has jurisdiction because the case raises a Fourth Amendment issue, that is to say a Constitutional issue. Indeed, while Jones challenges the way evidence contributing to his conviction had been obtained in violation of the Fourth Amendment to the U.S. Constitution, the U.S. Government, on the other hand, contends that Jones had a lesser expectation of privacy in his vehicle and that the installation of the tracking device on his car did not constitute a search, and therefore did not require a valid warrant.
3. At first instance, the case was heard by the District of Columbia district Court. (It was heard in federal court because DC is a federal enclave.) On account of the fact that the GPS tracking device had been installed without a valid warrant, the Court dismissed the information obtained while Jones’s car was stationed at the defendant’s residence. However, it held admissible all other evidence obtained thanks to the tracking device. Jones appealed his conviction on the grounds that the warrantless installation of a GPS tracking device infringed on his right to privacy guaranteed by the Fourth Amendment. The DC (federal) circuit court allowed the appealed and reversed the lower court’s ruling. Finally, the U.S. Government petitioned the U.S.S.C. to review the case and determine or not whether the use of data collected by the tracking device while Jones’s car was not at the defendant’s home could be used in court against him. It considers that Jones had a reduced expectation of privacy in this car, and therefore that the installation of a tracking device was not a search as defined by the Fourth Amendment.
4. The U.S.S.C had to consider whether Jones had a reasonable expectation of privacy in his car. Indeed, the search of a suspect’s car performed at a random checkpoint is one of the few exceptions to the warrant requirement. The case at hand, however, does not fall within this exception. Besides, the Supreme Court, ruled that supposing that Jones had a reduced expectation of privacy in his car, this vehicle nonetheless remained his property, the protection of which – the Court reminded  – is the very purpose / the original purpose of the Fourth Amendment. Consequently, the Supreme Court held that the installation of a tracking device on Jones’s property (even where he had a lesser expectation of privacy) was tantamount to a search.

The Court refused to consider whether or not the search was indeed a reasonable one, because the U.S. government had not raised this point before the Circuit Court.

5. Students’ own answers.

Text: California v. Carney

1. The two parties in this case are the State of California, bringing a prosecution against Carney, i.e. the defendant, who stands accused of exchanging marijuana for sex.

 2. Carney’s offence being a state offence / Since Carney’s offence contravenes California Law, Carney was tried in state court. At first instance, the case was heard by the California Superior Court. On appeal, the case was then heard by California Court of Appeals and by California Supreme Court. The trial court and the court of appeals both found Carney guilty, but the California Supreme Court reversed Carney’s conviction, arguing that conviction had been found on evidence that should have been held inadmissible in court. The case raising a Constitutional question, the USSC agreed to review the case on a writ of Certiorary filed by the State of California.

3. The party who filed a motion to suppress is Carney, the defendant. Carney argued that the evidence against him had been obtained in violation of his Fourth Amendment right, so that he could escape conviction.

Plea of nolo contendere: see booklet.

4. Reversing the California Supreme Court decision, the USSC held that Carney’s expectation of privacy in his motor home was actually reduced, and that consequently the police did not require a warrant before seizing evidence incriminating Carney. Carney’s attempt to distinguish between a vehicle and a motor home was deemed irrelevant. The evidence should thus be held admissible and Carney should be convicted.

5. See the summary of the Fourth Amendment studied in class.

L3: In-class test correction

Correction L3 in-class exam (Nov. 2014)

I.

While the free exercise clause establishes that government does not infringe on the citizens’ right to practice their own religion freely, the establishment clause guarantees that no government may promote one religion at the expense of others or discriminate against one particular faith or religious belief.

In Palko v. Connecticut (1937), the USSC established the selective incorporation doctrine (/ established selective incorporation) according to which provisions of the U.S. Bill of Rights (1791) should be incorporated to the states on a case-by-case basis.

Since Warden v. Hayden (1967), the Fourth Amendment has been understood as protecting people’s privacy as much as people’s property against unreasonable searches and seizures, that is to say, searches conducted without a valid warrant.

Unlike witnesses, that are required to tell the truth and may only abstain from testifying when their statement might incriminate them, the defendant may choose either to testify and waive his Fifth Amendment privilege against forced self-incrimination or to keep silent and plead the fifth, (in which case his silence may not be interpreted as evidence of guilt).

Unless they have obtained a warrant based on probable cause, the police may not carry out / conduct a search and seize incriminating evidence.

In McDonald v. Chicago (2010), the USSC incorporated to the states its decision in D.C. v. Heller (2008), according to which / in which it had ruled that the Second Amendment to the US Constitution guarantees an individual right to keep a gun at home for traditionally lawful purposes such as self-defence.

Since the 14^th amendment was passed in 1968, provisions of the Bill of Rights (1791) have been made applicable to the states, although to this day, not all the Bill of Right has been incorporated / some amendments still have not been incorporated.

Pursuant to the exclusionary rule of the Fourth Amendment to the US Constitution, evidence obtained without a valid warrant will be held inadmissible in court / at trial, unless it may be established that the police officers were in good faith and genuinely believed in the validity of the warrant when they conducted the search. 

Once a defendant has been acquitted he may not be tried again on the same charge in the same jurisdiction as he enjoys Fifth Amendment protection against double jeopardy / as he is covered by the Fifth Amendment protection against double jeopardy.

The principle of selective incorporation established by the USSC in Palko v. Connecticut (1937), provides that only fundamental liberties enshrined in the Bill of Rights should be incorporated to the states thanks to the Fourteenth Amendment to the US Constitution (1868).

Since District of Columbia v Heller (2008), the Second Amendment to the US Constitution has been understood to guarantee an individual right to keep a gun at home for traditionally lawful purposes such as self-defence.

According to New York Times v Sullivan (1964), to recover damages a plaintiff must establish on a balance of probabilities that the defendant (who may be either a journalist or a writer for instance) published libelous allegations about him either recklessly or with deliberate malice.

Pursuant to the protection against forced self-incrimination enshrined in the Fifth Amendment, a defendant may plead the Fifth and refuse to testify in court, with the knowledge that his silence will not be interpreted as evidence of his guilt.

As long as a regulation is not “content-based” that is to say that it does not intend to ban speech because of the message it conveys, it is bound to be held constitutional / it is bound to pass constitutional muster / it is bound to be upheld by the USSC.

According to the “Lemon” test established in Lemon v. Kurtzman (1971), to be constitutional a law / a statute must not foster an excessive entanglement with religion, its legislative purpose must be secular and its primary effect must be religiously neutral.

In Terry v. Ohio (1968), the USSC ruled that police officers do not need a warrant to conduct a stop and frisk search as long as they have reasonable suspicion that criminal activity is under way.

Voc: To have reasonable suspicion

Although in Miranda v. Arizona the USSC held that a suspect remanded in custody should be notified of his Fifth and Sixth Amendments’ rights to remain silent and to be assisted by a lawyer prior to interrogation / before being interrogated, the Court also established in Salinas v. Texas (2013) that the police have no such duty as long as the suspect is not under arrest.

To notify someone of something

As opposed to total incorporation, the selective incorporation doctrine established by the USSC in Palko v. Connecticut (1937) provides that the incorporation of Bill of Rights’ provisions to the states should be made on a case-by-case basis.

Unless a warrant based on probable cause that criminal activity is under way / in progress is delivered by a judge, the police may not perform a search (as evidence obtained without a warrant is held inadmissible in court, in accordance with the fruit of the poisonous tree doctrine).

II.

Text: Thornton v. U.S.

1. Thornton filed a motion to suppress the evidence against him because he claims that since he had already exited his car when the officer decided to search it, the police should have obtained a warrant. Thornton argues that the police officers had no probable cause that incriminating evidence could be found when they stopped him. Only once they had found drugs on Thornton, did the officers decide to search the car. Pursuant to “the search incident to a lawful arrest” exception to the warrant requirement, Thornton’s immediate surroundings could be searched but, in his view, not his car since he had already stepped out of it.

2. The Supreme Court did not follow Thornton’s argument and ruled that the search was constitutional. It considered that requiring the suspect to have noticed the policemen while still his the car to make the search constitution is too subjective a criterion. On top of this, weapons stored in a car being just as easily accessible, whether the suspect be inside or outside the car, justifies the necessity to authorise police officers to search a suspect’s vehicle in the context of a search incident to a lawful address, even though the suspect has been arrested while outside his vehicle.

3. See booklet.

Text: Supreme Court Rules in Ohio Prison Case

1. The issue at stake in Cutter v. Wilkinson is whether a federal law that requires that prisons make sure that every inmate has the possibility to practice his / her religion freely is constitutional or not.

Indeed, if the purpose of the law is to uphold the free exercise clause of the First Amendment of the U.S Constitution, the establishment clause also forbids government to promote religion, which according to the State of Ohio, the law precisely infringes.

2. According to the arguments put forward by the State of Ohio, inmates desirous to practice their religion avail of prison facilities and enjoy special treatment such as the possibility to gather for religious services. On top of facilitating criminal activity, such measures, Ohio claims, encourage convicts to embrace religion since such concessions significantly improve their prison conditions. Consequently, Ohio considers federal law infringes the establishment clause.

3. The majority of the U.S.S.C. upheld the law, ruling that it serves the free exercise clause without infringing the establishment clause of the First Amendment.

4. See booklet.

Text: Schooling the Supreme Court on Rap Music

1 & 2: The question raised by Elonis v. United States is whether Elonis’s threatening posts on facebook should be protected by the First Amendment right to free speech. Elonis, who is serving a prison sentence for having issued death threats against his wife, argues that when considering the nature of his messages the court should focus on his real intention, and not on his wife’s interpretation of these messages.

By doing so, Elonis further contends, the court would not see these posts as true threats (which are not protected by the First Amendment), but as artistic texts drawing on rap and blues music traditions.

The case is heard by the USSC because it raises a constitutional issue of public importance, but also because in a similar case where the petitioner raised a defence similar to Elonis’s, a Federal Court of Appeal issued a decision that gives credit to Elonis’s argument.

3. Students’ own answers:

Students may discuss what makes the specificity of art, and what may contribute to distinguishing explicit lyrics of artistic value from true threats.

For instance, students may mention Eminem’s song entitled “Kim” in which the rapper narrates the vicious killing of his wife, and note that the realistic depiction of the murder is all the more disturbing that Eminem enhances the autobiographical nature of the song by giving the victim in the song the same name as his former wife.

To justify the distinction between Eminem and Elonis, however / However, to argue in favour of Eminem’s case and to condemn Elonis, students may also stress that if the rap song and Elonis’s theats are both disturbing, Elonis’s messages fundamentally lack Eminem’s stylistic quality in terms of riming or rhythmic patterns as well as the rapper’s use of various rhetorical devices (metaphor, paronomasia…) similar to those found in poetry (or “slam poetry” for example). Despite its unpleasant content, such devices may contribute to giving the song some kind of artistic value. 

Lastly, students may also discuss Elonis’s statement that art is about pushing limits. Students may, for instance, argue that Eminem does not necessarily pushes limits by ambiguously blurring the boundaries between fiction and autobiography, but by challenging some of the codes of rap music itself, and more specifically by describing the plight or the distressing living conditions of underprivileged white American folks. 

L2 Sentence completion exercises: correction

Article IV of the U.S. Constitution

Exercise 2, p. 102 (booklet): Sentence completion

1. Pursuant to Article IV, Section 2...states are obligated to extradite individuals who are wanted or convicted of crimes in other states.

2. Public records...are kept by the states and include birth certificates, marriage licenses and voter registration rolls.

3. Despite the Constitution's full faith and credit provision,... states have a long history of disregarding the laws and policies of other states.

4. A fugitive from one state... must be delivered up by the executive authority of the state to which he or she has fled.

5. Although each state... is sovereign, it has transferred some of its sovereign powers to the federal state.


The U.S. Legal Professions

Exercise 1, p. 128 (booklet): Sentence completion

1. Whereas full service law firms... deal with many practice areas, boutique law firms specialize in particular areas, such as insurance defense work, telecommunications or entertainment law.

2. Owing to a duty of confidentiality,... lawyers are bound by an ethical principle of not divulging information shared by the client.

3. Due to the absence of a national bar examination... in the U.S., lawyers can practice only in the state(s) where they have passed the bar examination(s).

4. If a lawyer is charged... with a wrongdoing, disciplinary authorities can give private reprimands or impose disbarment or suspension orders.

5. Corporate lawyers are those... who are employed by corporations and receive salaries from only one client, the company.

L3 Sentence completion exercises: Correction

The Fifth Amendment 

Exercise 2, p. 83 (booklet): Sentence completion

1.  Once a defendant has been acquitted, he/she cannot normally be tried a second time for the same offence, as that would violate the constitutional protection against double jeopardy found in Amendment V. [26 words]

2.  When a defendant appeals his/her conviction, there may be a second trial, and since it is the defendant himself/herself that requests further proceedings, there is no automatic protection against double jeopardy. [25 words]

3.  A sentence may be unconstitutional if, for example, it imposes very heavy punishment for recidivism, but double jeopardy protection does not always apply, and the particular circumstances of a case determine the court's ruling. [28 words]

4.  A defendant has a right to silence unless he/she voluntarily testifies as a witness; if so, he/she partially waives the right and cannot refuse to answer the prosecution's questions on the subject of the defense testimony. [28 words]

5.  Through Miranda v. Arizona, it was ruled that the police are obliged to inform an arrested subject of his/her Fifth and Sixth Amendment protections, namely, right to silence and right to counsel, before interrogation. [30 words]

The Sixth Amendment 

Exercise  2, p. 91 (booklet): Sentence completion

1- Whereas the role of a Grand Jury  is to issue an indictment, the trial jury’s duty is to reach a verdict.

2. Pursuant to the Confrontation Clause,  the defendant in a criminal trial has the right to cross-examine witnesses giving evidence against him/her.

3. Although a public trial  guarantees that everybody has the opportunity to attend the proceedings, there can be exception to that fundamental requirement, such as secrecy in sexual abuse cases or when the defendant’s right to a fair trial is likely to be violated.

4. The unanimity rule is not a constitutional requirement for state juries, except if it is composed of six people.

The Eighth Amendment

Exercise 3, p. 101 (booklet): Sentence completion

 1. Whereas burning at the stake is considered as a cruel and unusual punishment, in a few states execution by a firing squad or the gas chamber is not/accepted as a form of punishment.

 2. A capital trial refers to a trial in which the defendant risks being sentenced to death if he/she is found guilty.

 3. Despite the 8th  Amendment banning cruel and unusual punishment, the death penalty is still on statute books/used as punishment in 32 states.

 4. Deterrence means dissuasion and is one of the advantages of the death penalty, according to its proponents.

 5. On top of protecting the defendant before trial, the 8th Amendment protects him/her after trail with the prohibition of excessive bail and of cruel and unusual punishment.

L2 IN-CLASS TEST CORRECTION

Correction L2 in-class exam (Nov. 2014)

I.

As opposed to federalists, who campaigned in favour of a powerful federal government, anti-federalists (such as Thomas Jefferson), wished that more power be reserved to the states / were anxious that Federal power be limited so that states would have greater power.

Cases heard in Federal Courts generally revolve around a federal law question or fall within the category of diversity of citizenship cases that is to say that they involve citizens from different states or a state and a citizen from another state.

Pursuant to the three-fifths compromise it was agreed that the slave population (that lived mainly in five Southern states) should be taken into account to determine the number of seats allotted to each state in the House of Representatives and that a slave should be counted as three-fifths of a citizen.

Since the adoption of the Twelfth amendment in 1804, the President and the Vice-President of the U.S.A. have been elected jointly, in order to make sure that they would belong to the same political party.

II.

Text: Executive order on immigration would ignite a political firestorm

1. Barak Obama is about to take an executive order that will allow 5 million undocumented immigrants to lawfully remain on US soil / on US territory. An executive order is one of the inherent powers of the President of the USA. It is an order that has force of law but which does not need Congress approval to come into effect. It thus enables the President to bypass the legislative branch.

NB: "5 million immigrants"  but "millions of people"

In the U.S.A.  ≠ On U.S. soil / On U.S. territory

Voc: to bypass something

2. Needless to say, Barak Obama’s move / decision / measure, is particularly unpopular among Republicans, who won a majority in both houses of Congress in the midterm elections in November 2014 / who since the midterms in November 2014 have held a majority of seats both in the House of Representatives and the Senate.

The midterm elections = the midterms

Since + Present perfect

3. The underlined sentence throws light on the plurality of meanings the term “politique” conveys in French, and which translates in English by either “politics” or “policy” according to context and meaning.

Policy refers to the specific field of a legislative action taken by Congress, or in this case, the President. (The Health policy / the Foreign policy …)

By saying that Obama’s executive order is a good policy, the Journalist approves of the very purpose of the measure, which in his view will be beneficial both to the immigrants that qualify for this plan (concerned by this plan), and to the economy of the USA.

By saying that it is good politics, however, the Journalist does not consider the beneficial or detrimental effects the measure will have on undocumented workers or the U.S. economy. Rather, it focuses on the strategic aspect of the measure from an exclusively political perspective, arguing that this executive order will first and foremost benefit the Democratic Party.

Indeed, the Republicans being in a majority in both houses of Congress, Obama has very little hope of bipartisanship, as he has lost the political clout he needs to force Republicans to broker agreements with the Democratic minority.

His order first enables him to leave his mark on his second term. / His order first enables him to overcome a legislative gridlock, and end his second mandate on a very positive note that will boost his popularity among a section of the electorate.  

Besides, this measure is very likely to infuriate Republicans many of whom will speak up against it / or will be tempted to lambast it. Obama thus hopes to discredit the Republicans among a substantial section of the electorate.

By doing so, Obama is already courting the Hispanic vote / tapping into the Hispanic vote in view of the 2016 Presidential election.   

NB: "Les prochaines élections présidentielles  => The next Presidential election"

Grammar: To benefit someone

Vocabulary: To broker an agreement with someone.

M1 Walden v. Fiore (2013) Case Summary

Walden v. Fiore (2013)

Case Summary

I. Which courts had jurisdiction and what were their respective rulings?

1.    The Nevada Federal District Court:

The Nevada Federal District Court ruled that because the seizure took place in and aimed at Georgia, the Nevada Court was deprived of personal jurisdiction.

Or: The Nevada Federal District court ruled that it did not have personal jurisdiction over the case, because the seizure took place in Georgia and aimed at Georgia.

2.    The Ninth Circuit U.S. Court of Appeals:

The Ninth Circuit reversed the decision, on the basis that Walden had drafted a false probable cause affidavit with the knowledge that his action would harm Nevada residents.

3.    The U.S.S.C

Walden filed a petition for a writ of certiorari to the USSC to determine whether or not the Nevada District court could exercise personal jurisdiction over the case and whether or not it was the appropriate venue.

II. Brief outline of the Facts:

Walden and Fiore are professional gamblers returning from San Juan, Puerto Rico to their home in Las Vegas, Nevada, via Altlanta, Georgia.

At Atlanta Airport, Fiore and Gipson were controlled by Anthony Walden and DEA Agents / were subjected to a ramped-up security screening.

Grammar: To be subject to ≠ to be subjected to

A drug-sniffing dog / a drug-detection dog was alerted to Gipson’s bag / reacted to Gipson’s bag and a substantial amount of cash ($97,000) was found in Fiore’s and Gipson’s carry-on bags, which their claimed constituted personal gambling winnings.

On suspicion that the money resulted from illicit drug activity, the agents seized the cash, promising to return it once Fiore and Walden had produced paperwork proving it had been acquired legitimately.

Once they had returned to Vegas / Upon returning to Vegas, Fiore and Gipson did so, but Walden nonetheless submitted a false probable cause affidavit to the U.S. Attorney for the Northern District of Georgia to initiate a forfeiture action. 

Approximately seven months after the seizure, an Assistant U.S. Attorney determined that the government lacked probable cause to seize / forfeit Fiore and Gipson’s money, and returned it to them.

Gipson and Fiore then decided to sue Walden / initiate a tort action against Walden, alleging the seizure constituted a violation of their Fourth Amendment rights.  

III. What did the plaintiffs allege in their suit against the defendant?

Fiore and Gipson argue that the Nevada District court has personal jurisdiction over the case as the defendant, Walden, intentionally targeted them, as individuals, to suffer in Nevada (although Walden himself is from Georgia and his action took place in Georgia). The harm caused by Walden’s false affidavit occurred in Nevada, and so Nevada should have personal jurisdiction.

They contend that when defendants know that the plaintiffs will feel the effects of the defendants’ actions in a different jurisdiction, states’ sovereignty requires that the state where the plaintiff feels the injury be able to assert personal jurisdiction over the defendant.

They believe that Walden’s intentional conduct towards residents of Nevada tie him to the state.

Vocabulary: to tie a defendant to a state

Walden’s arguments:

On the other hand, one of Walden’s arguments consisted in saying that the Ninth Circuit’s decision to grant Nevada personal jurisdiction would have drastic consequences for federal law-enforcement officers (and federal employees) that were required to interact with people from all over the United-States in the course of their work. Indeed, pursuant to the Ninth’s circuit standard, federal law-enforcement officers could be potentially sued by plaintiffs in states where they had no dealings whatsoever.

IV. What was the decision handed down here? When can a court exercise personal jurisdiction over the parties to a civil action?

The issue the United States Supreme Court will consider in Walden v. Fiore is twofold. It will both examine:

a.    Whether a state can exercise personal jurisdiction over a defendant whose sole contact with the state is his knowledge that the plaintiff had connections to the state.

b.    Supposing that Nevada may exercise jurisdiction over the case, it must then decide whether Nevada is a proper venue.

While Walden claims that because the action that gave rise to the claim took place in Georgia, Nevada is not the proper venue, Fiore, on the other hand, purports that because Walden’s action targeted Nevada residents, Nevada is the proper venue.

The court’s decision stems from / proceeds from / results from its interpretation of the test articulated in Calder v Jones, according to which personal jurisdiction is determined by three conditions:

1.    Whether the defendant committed an intentional act

2.    Whether the act was aimed at the forum state

3.    Whether the harm caused would be experienced in the forum state.

The Supreme Court ruled that the Nevada District Court lacked personal jurisdiction over the case, because Walden did not have “minimal contacts” / “minimum contacts” with the forum State. Indeed, the defendant did not purposefully directed his conduct at the forum, but only at its residents. 

In Calder, on the other hand, California had personal jurisdiction over defendants from Florida because California was “the focal point” of both the story the defendants had presented in their article (at the origin of the case) and of the harm suffered.

A defendant’s contacts with a state are to be distinguished from his / her contacts with the state’s plaintiffs.

Summary in “Plain English” (from Scotusblog):

It is a basic principle of jurisdiction that you cannot force somebody to travel to a far-off place to litigate a case if they have no connection to that place.  If you want to sue somebody in a particular state, you need to show that they have made contact with the state — either by committing an act in that state, or at least by intentionally reaching out to the state somehow.  But you cannot sue them simply because you live in the state and you have been hurt.  Because Officer Walden confiscated the plaintiffs’ money in Georgia and kept it in Georgia, they could not sue him in Nevada when they returned home.

Sources for this summary include The Cornell University Law School website and Scotusblog.com