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Answer each question minimum of 150 words. Must use provided material (PDF book) as well as additional sources to help support answers. Remember to use in-text citations in each new paragraph. Reference/cite in APA format. DO NOT PLAGIARIZE. Here is the reference for the PDF: Hall, D. (2015). Criminal law and procedure (7th ed.). Stamford, CT: Cengage Learning.1.) State law requires that all children between the ages of 5 and 16 years attend an approved school. Defendants have been charged with violating the statute, as they do not permit their children to attend school. The defendants are Mennonites and claim that it would violate their First Amendment right to freely exercise their religion. The defendants teach their children in a manner consistent with their religious teachings. Should they be convicted? Explain your reasoning.2.) What is the exclusionary rule?
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CHAPTER 9
Chapter Outline
Constitutional
Defenses
L
I
D
D
E
L
L
,
T
I
F
F
A
N
Y
1
5
6
8
T
S
Introduction
Double Jeopardy
Self-Incrimination and Immunity
Due Process and Equal Protection
Vagueness and Overbreadth
Analyzing Constitutional Claims
Ex Post Facto and Bills of Attainder
First Amendment and Religion
First Amendment and Speech
Privacy and Other Unenumerated Rights
Privileges and Immunities
Ethical Considerations: Are Federal
Prosecutors Subject to State Ethics
Rules?
Chapter Objectives
After completing this chapter, you should
be able to:
• identify and describe specific rights
discussed in the chapter, such as
freedom from double jeopardy, to
speak, to practice one’s religion, from
the establishment of a religion by
the government, to privacy, to be
treated equally, and to substantive
and procedural due process.
• identify and explain the landmark
Supreme Court cases featured in
the chapter.
• apply the basic principles learned in
the chapter to fact scenarios.
• identify the material facts and legal
issues in two-thirds of the cases you
read, and describe the court’s analyses
and conclusions in these cases.
291
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
292   Part I Criminal Law
Introduction
By its nature, a constitutional right is also a constitutional defense. After all, a right is
something that may be asserted by person without suffering reprisal from the government. Inherently, a right stands as a limit on government. So, when a government interferes with speech, one defense may be the protection of speech itself. A variety of defenses
arise from rights secured by the U.S. Constitution. Most of these rights are found in the
first nine, as well as the Thirteenth, Fourteenth, and Fifteenth Amendments. You have
already learned a few of these, such as the First Amendment’s protection of expression. In
addition, many rights that are procedural, such as the right to a speedy trial, are discussed
later. A few critical defenses have been chosen for discussion in this chapter. The big dogs
of criminal procedure,Lthe Fourth, Fifth, and Sixth Amendments, are not examined in
this chapter because they
I receive considerable attention in the chapters that follow.
Be aware that each state has its own constitution, which may provide greater
D
­protection than the U.S. Constitution. During this discussion you may want to refer
D which is reprinted as Appendix A of this text.
to the U.S. Constitution,
E
L
Double Jeopardy
L
The Fifth Amendment
, to the U.S. Constitution provides that “no person shall be
double jeopardy clause
■ A second prosecution
by the same government
against the same person
for the same crime (or for
a lesser included offense)
once the first prosecution
is totally finished and
decided. This is prohibited
by the U.S. Constitution.
subject for the same offense to be twice put in jeopardy of life or limb.” The principle
of not punishing someone twice for the same act can be found as far back as Blackstone’s CommentariesTin the 1700s.1 The Double Jeopardy Clause applies only to
criminal proceedings.I
There are actually two prohibitions in the Double Jeopardy Clause. The clause
prevents: (1) a secondFprosecution for the same offense and (2) a second punishment
for the same offense. F
Often the legal question in double jeopardy cases is whether a prior “jeopardy”
A
­occurred. It is generally held that a person has been put in jeopardy once a plea of guilty
has been entered and N
accepted by a court. An unapproved plea will not suffice, and a
subsequent prosecution
Y will not be prohibited by the Double Jeopardy Clause. In jury
trials, jeopardy attaches once a jury has been selected and sworn. States treat bench
trials differently, although the prevailing view is that jeopardy attaches when the first
witness has been sworn.
1
Once jeopardy attaches, the defendant may not be tried again. However, there
5
are a few exceptions. A defendant may be retried if the first trial was terminated by a
6 Mistrials may be declared for a variety of reasons. Death of
properly declared mistrial.
the trial judge or one 8
of the participating attorneys would likely result in a mistrial. If
a witness blurts out an answer to a question before the judge has an opportunity to
sustain an objection toTthe question, and the answer is extremely prejudicial, a mistrial
may be declared. TheScauses of a mistrial are endless. Note that the mistrial must be
proper. That is, if an appellate court later determines that a mistrial should not have
been declared, the defendant has been put into jeopardy. It is always proper to retry
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 9: Constitutional Defenses   293
a defendant whose prior trial was declared a mistrial upon the defendant’s motion. If
a defendant objects to a government motion for a mistrial, there must be a “manifest
necessity” (darn good reason) for the mistrial.2
It is also not a violation of the Fifth Amendment to prosecute a defendant who was
previously charged but whose charges were dismissed prior to jeopardy attaching. Additionally, if a defendant appeals a conviction and prevails, the defendant may be retried,
unless the appellate court finds that insufficient evidence exists to retry the defendant.
However, if defendants are acquitted on a serious charge and convicted on a lesser and
then prevail on appeal, they may be retried only on the lesser. It is violative of the Fifth
Amendment to retry the defendant on the more serious offense. Whether a defendant
may be retried following government appeals hasLbeen an issue in many cases. Clearly,
the government may not win a new trial following an acquittal. However, a conviction
may be reinstated by an appellate court if a trial Icourt’s order setting aside the conviction is found invalid.3 But an appellate court may
Dnot order a new trial where the trial
judge entered a judgement of acquittal following a hung jury.4 The outcomes in this
area of law are dependent upon what judgementD
is first entered by the trial court. If it
E with trial judge reversals of convicis a conviction, then an appellate court may tamper
tions. If it is an acquittal, then double jeopardy bars
L acting further against the accused.
The Supreme Court has also held that double jeopardy does not bar correcting a senL is not retrial of an “offense.” However,
tence on appeal or rehearing because such a procedure
the outcome may be different if resentencing results,in the application of the death penalty.5
The Fifth Amendment only forbids retrial for the same offense. Determining
whether two acts constitute the same offense is not always an easy task. Two offenses
are the same unless one requires proof of a factTthat the other does not.6 This is the
“same evidence test.” The civil law concept of collateral
estoppel, or the preclusion of
I
relitigating the same issue, applies in criminal cases as well. The Supreme Court first
F
announced this in Ashe v. Swenson.
F
A
N
ASHE V. SWENSON
Y397 U.S. 436 (1970)
Sometime in the early hours of the morning of
1
January 10, 1960, six men were engaged in a poker
5
game in the basement of the home of John Gladson
at Lee’s Summit, Missouri. Suddenly three 6
or four
masked men, armed with a shotgun and pistols,
8
broke into the basement and robbed each of the
poker players of money and various articlesTof personal property. The robbers—and it has never been
S
clear whether there were three or four of them—
then fled in a car belonging to one of the victims
of the robbery. Shortly thereafter the stolen car was
discovered in a field, and later that morning three
men were arrested by a state trooper while they
were walking on a highway not far from where the
abandoned car had been found. The petitioner was
arrested by another officer some distance away.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
(continued)
294   Part I Criminal Law
ASHE V. SWENSON
(c o ntinu e d)
The four were subsequently charged with
seven separate offenses—the armed robbery of
each of the six poker players and the theft of the
car. In May 1960 the petitioner went to trial on the
charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State
called Knight and three of his fellow poker players
as prosecution witnesses. Each of them described
the circumstances of the holdup and itemizedLhis
own individual losses. The proof that an armed
I
robbery had occurred and that personal property
D
had been taken from Knight as well as from each
D
of the others was unassailable. The testimony
of the four victims in this regard was consistent
E
both internally and with that of the others. But
L
the State’s evidence that the petitioner had been
one of the robbers was weak. Two of the witnesses
L
thought that there had been only three robbers al,
together, and could not identify the petitioner as
one of them. Another of the victims, who was the
petitioner’s uncle by marriage, said that at the T
“patrol station” he had not positively identified each
of the other three men accused of the holdup,I but
could say only that the petitioner’s voice “sounded
F
very much like” that of one of the robbers. The
F
fourth participant in the poker game did identify
the petitioner, but only by his “size and height,A
and
his actions.”
N
The cross-examination of these witnesses was
brief, and it was aimed primarily at exposingYthe
weakness of their identification testimony. Defense
counsel made no attempt to question their testi1
mony regarding the holdup itself or their claims as
5
to their losses. Knight testified without contradiction that the robbers had stolen from him his watch,
6
$250 in cash, and about $500 in checks. His billfold,
8
which had been found by the police in the possession of one of the three other men accused ofTthe
robbery, was admitted in evidence. The defense ofS
fered no testimony and waived final argument.
The trial judge instructed the jury that if it
found that the petitioner was one of the participants in the armed robbery, the theft of ‘any
money’ from Knight would sustain a conviction
(citation omitted). He also instructed the jury
that if the petitioner was one of the robbers, he
was guilty under the law even if he had not personally robbed Knight (citation omitted). The
jury—though not instructed to elaborate upon its
verdict—found the petitioner “not guilty due to insufficient evidence.” . . .
Six weeks later the petitioner was brought to
trial again, this time for the robbery of another participant in the poker game, a man named Roberts.
The petitioner filed a motion to dismiss, based on
his previous acquittal. The motion was overruled,
and the second trial began. The witnesses were
for the most part the same, though this time their
testimony was substantially stronger on the issue
of the petitioner’s identity. For example, two witnesses who at the first trial had been wholly unable
to identify the petitioner as one of the robbers, now
testified that his features, size, and mannerisms
matched those of one of their assailants. Another
witness who before had identified the petitioner
only by his size and actions now also remembered
him by the unusual sound of his voice. The State
further refined its case at the second trial by declining to call one of the participants in the poker game
whose identification testimony at the first trial had
been conspicuously negative. The case went to
the jury on instructions virtually identical to those
given at the first trial. This time the jury found the
petitioner guilty, and he was sentenced to a 35-year
term in the state penitentiary. . . .
“Collateral estoppel” is an awkward phrase,
but it stands for an extremely important principle
in our adversary system of justice. It means simply
that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 9: Constitutional Defenses   295
ASHE V. SWENSON
(c o ntinu e d)
cannot again be litigated between the same parties
in any future lawsuit. Although first developed in
civil litigation, collateral estoppel has been an established rule of federal criminal law at least since
this Court’s decision more than 50 years ago. . . .
Straightforward application of the federal rule to
the present case can lead to but one conclusion. For
the record is utterly devoid of any indication that the
first jury could rationally have found that anLarmed
robbery had not occurred, or that Knight had not
I been
a victim of that robbery. The single rationally conceivD
able issue in dispute before the jury was whether the
petitioner had been one of the robbers. And the jury
by its verdict found that he had not. The federal rule
of law, therefore, would make a second prosecution
for the robbery of Roberts wholly impermissible.
The ultimate question to be determined . . . is
whether this established rule of federal law is embodied in the Fifth Amendment guarantee against
double jeopardy. We do not hesitate to hold that it
is (citation omitted). For whatever else that constitutional guarantee may embrace, it surely protects
a man who has been acquitted from having to “run
the gantlet” a second time. . . .
D
E
L
The Double Jeopardy Clause is fully applicable
L to the states through the F­ ourteenth
Amendment. However, the clause does not prevent second punishments for the same
, who robs a federally insured bank
offense by different sovereigns. For example, a person
may be prosecuted by both the state where the bank resides and the United States.
This is true even though the offenses arise from the same acts. Although the Double
T
Jeopardy Clause does not prohibit two sovereigns from prosecuting for the same ofI
fense, many states prohibit this by statute. In practice,
and sometimes by policy, most
prosecutors do not pursue a defendant who has been
previously
prosecuted in another
F
jurisdiction for the same crime. The Model Penal Code incorporates this approach
in certain circumstances.7 Municipalities are notFindependent beings; they owe their
existence not to the Constitution of the United States,
A but to a state. Accordingly, prosecutions by cities are treated as being brought by the state, and it is a violation of the
N
Double Jeopardy Clause for a state and city to punish one for the same offense.
Y
Self-Incrimination and Immunity
1
The Fifth Amendment also states that no person5“shall be compelled in any criminal
case to be a witness against himself.” The following passage explains why the framers of
6
the Constitution included a privilege against self-incrimination.
8
Perhaps the best-known provision of the Fifth Amendment is the clause against forced
“self-incrimination,” whose origin goes back toTEngland where persons accused of
crimes before ecclesiastical courts were forced toStake an ex officio oath. That is, they
had to swear to answer all questions even if the questions did not apply to the case at
trial. This requirement was later adopted by the Court of Star Chamber. One of the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
296   Part I Criminal Law
victims of the Court was a printer and book distributor named John Lilburne, charged
in 1637 with treason for importing books “that promoted Puritan dissent.” Lilburne
told his accusers, “I am not willing to answer to you any more of these questions because
I see you go about by this examination to ensnare me. For seeing the things for which
I am imprisoned cannot be proved against me, you will get other material out of my
examination; and therefore if you will not ask me about the thing laid to my charge, I
shall answer no more. . . . I think by the law of the land, that I may stand upon my just
defense.” Lilburne was convicted, fined, whipped, pilloried, gagged, and imprisoned
until he agreed to take the oath. . . .
One notorious instance of forced self-incrimination in the American colonies
­occurred in the Salem witch trials. In 1692, Giles Corey, an elderly Massachusetts
L
farmer, was accused of witchcraft. He knew whether he pleaded guilty or not guilty
I and executed and his property confiscated. So to assure that his
he would be convicted
heirs inherited his D
property, he refused to plead and thus could not be convicted. The
judges ordered him strapped to a table, and stones were loaded upon his chest to force
the plea out of him.DCorey’s final words were “more weight.” Then his chest caved in.8
E
transactional immunity
■ Freedom from
prosecution for all crimes
related to the compelled
testimony, so long as the
witness tells the truth.
use immunity
■ Freedom from
prosecution based on
the compelled testimony
and on anything the
government learns from
following up on the
testimony.
John Bradshaw, John Lilburne’s attorney, stated it best when he said that “It is conL nature and the kingdom for any man to be his own accuser.”
trary to the laws of God,
Generally, the Fifth
L Amendment prohibits the government from compelling people
to testify when incrimination is possible. Most people have heard of “pleading the Fifth.”
,
However, if immunity from prosecution is granted to a witness, he or she may be compelled to testify. If a witness refuses to testify because of the fear of self-incrimination,
the government may offer
T the witness immunity from prosecution so that the testimony
may be compelled. There are two types of immunity: transactional and derivative use.
I
Transactional immunity
shields witnesses from prosecution for all offenses related to their testimony.
For
example,
if a witness testifies concerning a robbery, the
F
government may not prosecute the witness for that robbery, even though the governF
ment may have evidence of guilt independent of the witness’s testimony. Transactional
immunity gives more A
protection to the witness than is required by the Constitution, so
when it is granted, a witness
N may be ordered to testify.
The minimum immunity that must be provided a witness to overcome a Fifth
Amendment claim is Y
derivative use immunity. This prohibits the government from
using the witness’s testimony or any evidence derived from that testimony to prosecute
the witness. However, all evidence that is independently obtained may be used against
1
the witness.
5 prohibits the government from using the witness’s testimony
Use immunity only
against him or her. Statutes
6 that provide only for use immunity are unconstitutional, as
derivative use is the minimum protection required by the Fifth Amendment.
8 immunity is granted. Some permit the prosecutor to give the
States vary in how
immunity; others require
T both the request of the prosecutor and the approval of the
trial judge.
S
A person may also waive the Fifth Amendment privilege against self-incrimination.
Generally, once a person testifies freely, the privilege is waived as to the subject discussed
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 9: Constitutional Defenses   297
during the same proceeding. A witness (or defendant) may not ­testify s­electively
­concerning a subject. It is often said that te …
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