Vatterott OKC Paralegal Studies

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Archive for the category “Constitutional Law”

Constitutional Defenses

The purpose behind a Constitutional defense is to make sure that the defendant is treated in a fair manner.

Where do we get Constitutional defenses?  We get them from four places.

  1. The US Constitution (hence the name)
  2. Bill of Rights
  3. State constitutions (again, hence the name)
  4. Federal and state laws

So, let’s take a look at a few of them.  Remember – you need to check your state constitution and your local laws during your research process for any criminal case or criminal law class assignment.  If you are taking criminal law, check with your instructor to determine if you should use the statutes the book lists OR if you should look up the statutes in your jurisdiction.

Freedom of Religion

This can occur when the goals of religion conflict with specific criminal laws.  The court has the responsibility of balancing religious rights with the right of the state (health, safety, and welfare of society).  Remember that our government is comprised of all three types of political theories.  One of those theories is the sociological theory which looks at the good of society as a whole first and foremost.  That doesn’t mean that religious rights may be trampled on; it does mean that if someone believes they possess the religious right to kill people that they aren’t allowed to do it.  It is a detriment to society.  Oh, and it’s murder.

Freedom of Expression

This is one of our basic rights.  We all have the right to express ourselves.  Any law that interferes is thoroughly examined by the courts.  The state must show a compelling state interest in order to justify that law.

Freedom of Assembly

We have the right to peaceful assembly and demonstration under the First Amendment.  The government may limit these rights if there is a clear and present danger.  The state may use time, place, and manner laws in prosecution.  However, they may not be used to defeat the purpose of the assembly.

Double jeopardy

A person may not be tried or punished twice for the same crime.  That seems easy, right?  It’s not.  It’s a little more complicated.  Let’s look a little closer.

  • DJ begins once the jury is impaneled and sworn or when the first witness is sworn in a non-jury trial.
  • DJ ends when the formal judgment is entered.
  • DJ applies when a person has been tried and subsequent charges covers the same conduct, victim, or elements as the previous charge(s).
  • DJ applies to lesser included offenses and to attempt offenses that merge with the completed crime.
  • DJ doesn’t apply to civil cases where elements are similar (keyword) to criminal charges.
  • DJ does apply to juvenile matters.
  • DJ does not apply to convictions overturned on appeal OR due to a mistrial requested by the defendant.
  • Acquittal or conviction on a lesser included offense forecloses on the greater offense with some exceptions.
  • Conviction or acquittal on the greater offense prevents prosecution of the less included charge.
  • DJ does NOT prevent the dual sovereignty doctrine.
  • Prevents a defense against multiple punishments when two statutes have been violated by the same conduct.

Whew – that wore me out.  Is your head spinning?  There is a lot involved with DJ.  It isn’t JUST being tried twice for the same offense.

Substantive Due Process

Guaranteed to us by the Fifth and Fourteenth Amendments…good old due process.  So – what’s substantive due process?

It prohibits laws that are:

  • Too vague
  • Overbroad
  • Unreasonable
  • Arbitrary
  • Capricious

Remember, though, laws are written in broad language for a reason.  It needs to cover most circumstances.  Congress makes the laws and the judiciary applies them to specific circumstances.

Ex Post Facto laws are barred by the Constitution as a violation of due process.



West Virginia Teen Arrested After Refusing To Remove NRA T-Shirt

Do you think this is a violation of his First Amendment Rights?  He is 14 and being charged with a criminal offense.


article-2312730-196C26EA000005DC-284_634x354There is an interesting free speech case brewing in West Virginia where Jared Marcum, 14, has been criminally charged for refusing to remove a T-shirt with National Rifle Association’s logo and hunting rifle. The T-shirt was found in violation of Logan Middle School’s dress code. However, regardless of how you feel about gun rights, the T-shirt was the expression of a recognized constitutional right and constitutes political speech.

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Bill to Law

A bill is a proposed law (legislation).  It can originate in either the House or the Senate with the exception of a revenue raising bill; it must originate in the House.

  • The person presenting the bill is called the bill sponsor.  
  • It goes to a joint committee.  A joint committee has members from both the House and the Senate.  They work on hammering out the details.
  • Then, it is presented to the originating body.  The originating body is the part of Congress the sponsor belongs to (Senate or House).
  • During the presentation, the bill is debated and sometimes further refined.
  • Then, a vote takes place in the originating body.  If passed, it goes to the other half of Congress.
  • Rinse and repeat on the discussion and vote.
  • If the vote is affirmative, it goes to the President.
  • The President has ten days to do something with the bill.  If he signs it, the bill becomes law on the date chosen by Congress.  I’m sure you’ve seen statutes that say, “Effective (insert date here).”  If he does not sign it and Congress IS in session, it automatically becomes law.  If he does not sign it and Congress IS NOT in session, it becomes a pocket veto.
  • If the President vetoes a bill out right, it is returned to Congress.  If Congress can overturn the veto with a majority vote, the bill still becomes law.

This differs a little bit from enacting a new Constitutional Amendment.  Not only would adding a new Amendment require a majority vote by our federal Congress, 3/4 of the state governments would also have to approve of the addition.


Blood draws: DUI

Blood draws: DUI

“Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances…“the practical problems of obtaining a warrant within a time frame that still preserves the opportunity to obtain reliable evidence.” Justice Sotomayor

“A police officer reading this court’s opinion would have no idea — no idea — what the Fourth Amendment requires of him…“when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.” Chief Justice John Roberts

“Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue…” Justice Thomas

Thirty states have the electronic means to secure a warrant.  In some states, police officers can call judges directly according to the article.

Now Being Heard: Your Fifth Amendment Right to Silence

Now Being Heard: Your Fifth Amendment Right to Silence

Imagine this:

You face the allegation of a horrific crime.  You are arrested.  You immediately invoke your Fifth Amendment Right to remain silent.  The State uses the fact that you would not answer questions during an interrogation against you in your trial.  You are found guilty partly  based on that fact.

Should you face a legal consequence for relying on one of your core rights?  That is the question that SCOTUS will take up today at 11:00 AM EST.

The year before the court ruled on Miranda, a decision was issued in Griffin v. California.  The court ruled that the Fifth Amendment doesn’t allow for the Prosecution to comment to the jury during trial about the defendant’s use of the Fifth Amendment by not testifying at trial.

In 1976, the court further refined its opinion in Doyle v. Ohio.  Prosecution may not comment on the defendant’s decision to enact the right to remain silent after the Miranda Rights are given by law enforcement.

In this particular case, Salinas would not answer the question of what the ballistics tests would show after his arrest.  He did not take the stand.  The first trial resulted in a mistrial because the jury couldn’t decide on a verdict.  He was tried again (not double jeopardy because there was a mistrial – not a decision in whether or not he was guilty).  The State used the exact same evidence.  The second jury convicted Salinas and sentenced him to 20 years.  His right to silence appeal failed in the Texas court system.  His attorneys then appealed to SCOTUS on certiorari last August.  Justices are asked to clarify whether and under what circumstances the Fifth Amendment applied to someone who hasn’t been informed of the Miranda Rights.

Visit the link to read about the briefs and analysis.

Procedural Due Process

Procedural Due Process

What is procedural due process? In simple terms, it is the process designed to make sure all of the steps of due process are fundamentally fair. The Fifth and Fourteenth Amendments give us our right to due process.

The attached image is a flow chart depicting the test of balance.

Articles of Confederation

Articles of Confederation

  • Devised and published about 11 years before the Constitution
  • Ineffective on a local level
  • Created our first centralized government

State and Federal Powers

State and Federal Powers

This is a lovely plain English site that explains the differences between state and federal powers.  Nothing like a little education on a Friday!

SCOTUS declines controversial prof’s case

SCOTUS declines controversial prof’s case

How do you feel about the state court making the determination that the university’s hearing was “quasi-judicial” and that he couldn’t sue because of it?  Do you feel that crossed a line and attempted to take away his right to litigate?  Did you know that most employment contracts, such as for educators, have an arbitration agreement?

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