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Evidence: Chapter 1


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Evidence Law
set of rules that govern how trials are conducted; both civil and criminal trials
Code of Hammurabi
first known written legal code; retributivist (eye for an eye) philosophy
Common Law
the law in common throughout England; judge made law
governs court issuing the decision as well as any lower, inferior courts; all courts in a state are bound to follow the decisions of the highest court of the state; federal courts bound to U.S. Supreme Court; binding to courts within jurisdiction of the court who issued the opinion
Stare decisis
"let the decision stand;" if a prior decision on a legal issue applies to a current case the court will be guided by that prior decision and apply the same legal principles in the current case; a means of establishing the value of prior decisions of precedent
rules enacted by the legislature under the authority granted it by a constitution
document that creates a government; constitutes the government
law enacteed by legislature; collected in codes; civil and criminal (penal code) law
Administrative Regulations
another form of legislation that may, under certain circumstances, have the force of the law; enforced by courts just like statues; rules enacted by state or local agencies (regulations affecting food and drugs)
Habeus Corpus
method of appeal whereby an inmate will protest his incarcertion and the right of the state or government to imprison him; individual right mentioned in Constitution
Bills of Attainder
legislation imposing punishment without of trial; prohibited as an individual right mentioned in Constitution
Ex Post Facto Laws
legislation making prior conduct criminal; prohibited as an individual right mentioned in Constitution
First Amendment
freedom of press, freedom of assembly, freedom of religion, freedom of speech
Freedom of Religion
clause of First Amendment; two guarantees: government cannot establish an official, state supported religion and it shall not interfere with individual's religious practices; first guarantee is the establishment clause: wall of separation between church and state- statute must have secular purpose, primary purpose of stature must be neither pro or anti religion, statute must not foster "excessive" government entanglement with religion; does not mean freedom to worship is absolute
Second Amendment
right to keep and bear arms; made to allow states and gorups of citizens to have weapons to protect themselves against oppression by the federal government
Fourth Amendment******
forbids "unreasonable" searches and seizures and requires the existence of probable cause before warrants may be issued or a search and seizure may take place; warrants are required to describe their subject with "particularity;" does not forbid all searches and seizures but rather requires that they not be unreasonable
Probable Cause********
clause of Fourth Amendment; indicates a greater probability than not that a crime has occurred; less than proof beyond a reasonable doubt but more than a hunch
Fifth Amendment*********
right to indictment by a grand jury, freedom from double jeopardy, right to due process and just compensation, and privilege against self-incrimination; associated to criminal trials; applies only to federal gov't with indictment by grand jury clause-not incorporated into 14th Amendement because of Hurtado v. California (1884)
Double Jeopardy
clause of Fifth Amendment;jurisdiction may not prosecute someone again for the same crime after he or she has been acquitted, prosecute someone again for the same crime after he or she has been convicted, punish someone twice for same offense
Dual Sovereignty Doctrine
clause of Fifth Amendment; a person can be prosecuted in both federal and state courts for the same offense or in multiple state courts for the same offense
Sixth Amendment******
right to representation by counsel; right of assistance of counsel not only at trial but at any proceeding deemed a "critical stage" in the proceedings; critical stage inclused preliminary hearings, the arraignment, the trial itself, and the appeal of right; right to counsel means indigent persons who cannot afford to hire a lawyer must be provided one at the state's expense, as long as the defendant faces the possiblity of incarceration for six months or more
Seventh Amendment******
right to trial by jury in federal civil trials; applies only to federal trials- not incorporated into 14th Amendment
Eight Amendment
prohibits excessive bail, and cruel and unusual punishment; excessive bail= bail set at a higher figure than necessary to ensure presence of the defendant at trial (Stack v. Boyle, 1951); cruel and unusual punishment clause does not prohibit the death penalty-deemed to be in accord wit contemporary standards of decency
13th Amendment
prohibits slavery in U.S.; been used to uphold civil rights legislation passed by Congress to prevent racial discrimination by private citizens; applies to states
14th Amendment
forbids states from denying citizens due process or equal protection of laws; due process clause is identical to the one in Fifth Amendment-incorporates various provisions of the Bill of Rights, making them applicable to the states
Equal Protection Clause
clause of 14th Amendment; preclude states from making unequal, arbitrary distinctions between people; does not ban reasonable classifications, but it does prohibit classifications that are either without reason or based on race or gender
Suspect Classifications
classifications that are either without reason or based on race or gender
Fundamental Rights
rights applied to states but because these rights "are of such a nature that they are included in the conception of due process of law;" due process clause prohibits state action that violates rights "implicit in the concept of ordered liberty" or those rights that are "fundamental;" what constitutes a fundamental rights is left to the justices considering history and tradition of law; justices also conside "totality of circumstances"
Total Incorporation
the due process clause of the 14th Amendment made entire Bill of Rights applicable to states
Total Incorporation Plus
the due process clause of the 14th Amendment made entire Bill of Rights applicable to states, plus other unspecified rights; penumbras of privacy emanating from 1st, 3rd, 4th, and 5th Amendments allowing one to interpret the 9th Amendment to include the right to privacy-whole greater than sum of parts
Selective Incorporation
rejects the "totality of circumstances" component of the fundamental rights approach and instead incorporates rights deemed fundamental to the same extent and in the same manner as applied to the federal gov't; criminal protections not yet included are the right to an indictment by grand jury and the prohibition on excessive bail
Judicial Review
part of selective incorporation; power of the court, specifically judges, to examine a law and determine whether it is constitutional; not in constitution- judge made law
Marbury v. Madison (1803)
part of judicial review; established authority of Supreme Court to engage in judicial review of the acts of the other branches of gov't- most important case because established authority of the high court; job of courts to decide when toehr laws are in violation of Constitution and to declare these laws as null and void
Judiciary Act of 1789
Congress cannot pass a statute that changes the Constitution; only way to change the Constitution is through a constitutional amendment; established as law that the Supreme Court has the authority to review the constitutionality of Congressional (or presidential) activity- this is judicial review
information presented to jury during jury trial that allows the jury to render a verdict
Relevant Evidence
evidence that pertains to the matter at hand, that has some bearing on the trial
Competent Evidence
in a form the jury is permitted to hear or see
Evidence Code
compilation of common law evidence rules, written down (or codified) by the legislature; ex. FRE which more than 40 states have adopted in one form or another- 1975 enacted by Congress

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