***Get in the habit of trying to figure out the tipping point factually for each case.***
EXAM- heavily multiple choice. Probably 75% on M.C. They will be long, thick and dense questions. Plug in facts and make a persuasive argument that facts are in line with a legal doctrine.
Weighted mostly towards multiple choice. 75-25% cut. Multiple choice will be fact dense. It is not uncommon to give a healthy fact pattern and then two or three derivative questions. In crim law last year it was 25 questions and 20 pages of facts. I’d start with the essay first. Exam will be weighted in the amount we covered it in class. In final review we will get practice questions. Multiple choice will try to expose if you’ve learned a certain aspect of the law. There may be trick questions. Be careful and be precise.
-looking for creativity in exams in identifying issues corn has not thought of, but he also doesn’t want us all over the map. May get extra credit on the essay. Exam will not be easy, ti will be challenging.
EXAM- 40 m.c. worth 80% and one essay worth 20%.
If there’s a subpart, don’t follow IRAC, but just take it from one perspective.
No test question on sentencing, blockburger.
-Look at problems in book.
I. Incorporation of the Bill of Rights
a. The provisions of the Bill of Rights that pertain to criminal procedure – primarily, the fourth, fifth, sixth, and eighth amendments – have no direct effect on the majority of criminal cases that arise in this country because the Bill of Rights originally applied only to the federal government and most criminal cases arose in the states.
b. The 14th amendment imposes limits on state action.
c. To what extent, if at all, does the 14th Amendment due process clause incorporate the Bill of Rights, so as to make the Bill restrictions on federal power applicable to the states?
i. Why question is important:
1. determines the extent to which people are protected from overreaching by agents of the state.
2. If the due process clause incorporates the Bill of Rights in its entirety, the latter charter becomes a national code of criminal procedure.
3. federalism – degree of uniformity among states
4. exacerbates the rule of the judiciary in the enforcement of constitutional rights.
1. Total Incorporation
a. The 14th Amendment in general, and the due process clause in particular, incorporates all of the rights included in the Bill of Rights.
b. Advocated by Judge Hugo Black; never received support of the majority
2. Fundamental Rights
a. The 14th Amendment does not incorporate any of the provisions of the bill of rights.
b. The 14th Amendment requires the states to honor fundamental rights which may overlap with the ones in the bill of rights but are not related to them.
a. The due process clause incorporates the Bill of Rights in its entirety as well as all the fundamental rights that fall outside of the express language of the Constitution.
4. Selective Incorporation-Majority
a. Once a right is determined to be fundamental, every feature of the federal right
inst unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place toe searched, and the persons or things to be seized.”
b. Purpose – What does the 4th Amendment seek to protect?
i. What broad overriding values inspired the framers of the 4th Amendment?
1. The more recent interpretation of the amendment is that the framers intended to protect people’s legitimate expectations of privacy in their “persons, houses, papers, and effects.”
2. The unwarranted entrance into an individual’s home is the clearest violation of 4th Amendment values.
ii. “people” does not include the search of property located in a foreign country which is owned by a nonresident alien who is only briefly on U.S. soil even if the search is conducted by U.S. law enforcement agents.
iii. 4th amendment only limits gov’t action, it does not reach private searches or seizures.
c. Standing – A defendant in a criminal prosecution may not raise a claim of a 4th Amendment violation unless she is the alleged victim of the unreasonable search or seizure.
d. Exclusionary Rule
General Analysis Overview of when to apply the exclusionary rule: