1. Is there any kind of speech not protected by the first amendment? And can you give some examples?
2. How can the government set up mandatory waiting periods if the Second Amendment of the Bill of Rights guarantees the right to bear arms?
3. Is nude dancing protected speech under the Constitution? Why or why not?
4. If you believe in one religion and your parents believe in another
religion, can they force you to worship in their religion against your will?
If they do, is that legal and what are my rights? Do I have grounds to sue,
if I am being forced to worship in a religion that I do not believe in?
5. We would like to read about more Supreme Court cases that deals with
Freedom of Religion. Can you tell me where we might find some more recent
cases?
6. If one of your peers bad mouth your religion, what legal action can you take?
6A. If this student's "bad mouthing" is persistent and his sole purpose of making these statements was to get a rise out of the other student, could this then be considered harassment? And would this
harassment be considered a felony?
7. Before the First Amendment (The Establishment Clause) was written, was the
Church and Government separate?
8. Has a case you tried ever gone to the Supreme Court? If so, what was the
case and what was the decison?
9. Why wasn't Gideon's second trial (Gideon v. Wainwright 372 U.S. 335) in the
state of Florida considered double jeopardy?
10. How come an alleged perp can be found not guilty of felony murder, and then
be tried in civil court for wrongful death? Is this not double jeopardy?
11. What criterion is used to determine whether a search incident to an arrest
is valid?
What information do judges use to determine whether probable cause existed?
12. We are learning about opening and closing statements, how to pose
appropriate questions, what are the different types of objections, how to
respond to them, and hearsay. This is all very difficult and confusing,
can you help us with understanding these courtroom procedures?
13. We visited a judge, and we are talking about how you can not be convicted
of the lesser felony if not for the higher felony. For example, we saw a
case involving murder 2 and assault. Why can't you be found guilty of one
and not the other?
14. We also saw jury selection. What kinds of questions do you ask to find out
if the person could be impartial or actually partial to your client (if you
are the defense attorney)?
15. We are studying cases about the exclusionary rule. Can you give
me any information on the opinions of people who believe the evidence
should still be used even when actions of the police were inadvertent?
16. What is the definition of "the right of association," and how does it fit into the first amendment?
17. Why is school and religion not together? Why can't teachers or
principals talk to students about religions?
18. Why is there an Amendment on Freedom of Speech, when some things you
say can be used against you in court?
19. If certain summer and school facilities are required to provide an
alternative kosher meal for participants with certain dietary laws, why
don't they obey the laws?
20. Does having a broken tail light on your car give the police the
right to search and seize that car?
21. Is it OK if public school students pray in school?
22. Why is the President of the United States limited to 2 terms. Why can't the President stay in office as long as he or she wins the elections, and is doing the job well?
23. Is it OK for the President to say "let's all pray" for a person or
situation?
24. If we ask for a moment of silence, instead of a word of prayer, is
that a problem violating the Constitution?
25. Have any bills for raising revenue ever originated from somewhere
else besides the House of Representatives? Would that be a violation of the
Constitution?
26. Why are the police allowed to search people, but the school police
aren't allowed?
27. Why do the judges give life sentences, and the criminals don't do
the full time given?
28. How do prisoners live in jail when they have a life sentence?
29. Why are the Amish allowed to restrict the ages that they send their
kids to school?
30. What 5 critical decisions has the Supeme Court made which
affect our lives today and future generations?
31. Can a school prevent students from wearing hats in the building?
32. Are the statements made by John Rocker in a recent issue of Sports Illustrated
a form of protected "free" speech"?
33. If the supreme court ruled in favor of Yoder, how come the states still require that children must stay in school until age 16?
34. We were discussing separation of church and state. A student asked, "If there is separation of church and state, why are people asked to swear on a Bible in a law court?????"
35. I was wondering what the current names of the State Supreme Court is?? And Who is the Chief Justice of the Supreme Court is??
36. Should the federal government enact hate crime legislation?
37. How much evidence must the State produce in order to find a person guilty of murder in the first degree?
38. Is it true that the Supreme Court recently issued a ruling allowing law enforcement officers to make a "pre-text" traffic stop?
39. Can a police office search anyone without any cause?
40. Are peremptory challenges a constituitional guarantee?
41. Should the felony murder doctrine be abolished?
42. How long is a "search warrant" active for beyond the time and date for which it was signed?
43. When a state supreme court rules that a state law is unconstitutional, does that make the law void, meaning it cannot be used to bring another case before the court?
44. A student asked me, if a person is an athiest, and is being sworn in at court, does he place his hand on a Bible, and what would he say?
45. How long is a copyrighted document protected? Can copyrighted documents be sampled?
46. When a person violates a documents use what protects the artists rights?, Does an artist have a right to deny use of their document?, Do copyrights save the artists rights from "Joe Public"?
47. Can a person vote in elections if they have committed a felony? If not,how was this decided? Who passed the law?
48. If part of a schools dress code is the banning of all hats during school for no apparent reason other than disrespect, can they legally do this? If so, can it be overthrown by a court as in the Supreme Court case in 1969 about the armbands and the fact the Sup. Crt. said: "The freedom of expression does not end at the schoolhouse door."
49. Can the government intervene if a Native American does something illegal, but as part of their tribal beliefs on their Indian Reservation?
50. If a car is pulled over for a traffic violation, does a passenger have a legal right to get out of the car and walk away without being questioned or searched by the police?
51. Why are New York City police officers able to stop and frisk people on the street for no reason? Doesn't this violate our rights?
52. Have there been cases in the past that dealt with a parent's right, or lack thereof, to decide to take their child off of life support in the event of irreversible permanent brain damage? If so, how were they decided?
53. What degree of Christmas or Hannukah decorations are allowed in public schools? Can you have one without the other?
54. What is the definition of a "militia" with regard to the Second Amendment?
55. In U.S vs. Miller 1939, the court voted 9-0 that the right to own a gun applied to well regulated militas, so why do the common person have the right to own a gun?
56. One day I was watching "The Queen Latifa Show" based on racial problems of the community today, and I began to develop a question of my own. I have noticed that a young black male was not allowed in a jewerly store based on what he looked like. I feel this isn't fair to all black Americans. Are stores allowed to do this? Can charges be brought up to stop this?
57. Is there a way the court can stop pornograhy from being seen on the internet by younger students?
58. I know what double jeopardy means but what if evidence is found days after the case is closed. Could the defendant be accused?
59. Can a judge be fired because he/she ruled on a case based on the defend race?
60. What crimes can people commit in order for them to get the death penalty?
61. There is an elementary school teacher that defies a new dress code policy (it says males must wear neckties) and has received a reprimand. If he and the other teachers in his teachers association want to challenge the dress code in court is it likely that the teachers will win? Have their been cases like this in court, and if so did they turn out in favor of the teachers?
Question #1
(Sent by a Fifth Grade Student from PS 113 in New York City)
Is there any kind of speech not protected by the first amendment? And can
you give some examples?
ANSWER
(Responded by LEGAL Eagle #1, an attorney from New York City)
The First Amendment to the U.S. Constitution protects our freedom of speech. We are free to say almost anything we want without having to be scared that we could be arrested or punished in some way, even if our speech is offensive to a lot of people. Freedom of speech is very important to the American people, and speech will only be restricted where the harm from using the speech is more important than the freedom to use it. For, example, speech that is very likely to cause people to immediately begin acting violently towards others may be restricted. We say that this speech presents a clear and present danger of causing injury to others. Also, if you say something about someone that you know is not true and you intend to hurt that person's reputation in some way, then that speech is not protected by the First Amendment. That type of speech is called libel.
Other responses to Question #1
Question #2
(Sent by a High School Student at Martin Luther King Jr. High School in New York City)
How can the government set up mandatory waiting periods if the Second
Amendment of the Bill of Rights guarantees the right to bear arms?
ANSWER
(Responded by LEGAL Eagle #2, an attorney from New York City)
The Second Amendment provides that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." The right to bear arms under the Second Amendment is not without its limits.
According to a noted constitutional law scholar, Lawrence Tribe of Harvard Law School, "gun control generally comports with the narrowly limited aim of the [second] amendment as ancillary to other constitutional guarantees of state sovereignty. Tribe, American Constitutional Law, 2d edition, page 299.
A 5-day waiting period is considered by the government to be a reasonable restriction on the right to bear arms. It is based on the public policy of protecting the safety of the citizens. If someone were allowed to go buy a gun and take it home immediately, he might to do something he would later regret, like kill his whole family. Of course, very few of would do that. However, the law is designed to create a "cooling off" period so that does not happen. Thus, the 5-day waiting period, and other similar restrictions like a background check (the Brady Bill), are limits that are constitutionally acceptable because they fit within a state's sovereign power to protect its citizens.
What if Congress or New York State enacted a law that said that "No women may own guns" or that "using guns on Sunday is illegal"? Would these types of laws be considered constitutional? Probably not. However, a law that restricts what type of guns (e.g., machine guns) you can own would be constitutionally permissible for safety reasons. The two other types of laws I mentioned have no safety purpose and are arbitrary. Moreover, they discriminate against people based on their sex and/or religion.
Other responses to Question #2
Question #3
(Sent by a High School Student at Philadelphia Mennonite High School in Philadelphia, PA)
Is nude dancing protected speech under the Constitution? Why or why not?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
Short Answer: Nude dancing is speech protected by the First Amendment to the US
Constitution.
General Rule: The First Amendment to the US Constitution states: "Congress
shall make no law abridging freedom of speech or of the press . . ." Although
adult entertainment, which includes sexually explicit magazines, films and
videotapes, as well as nude and topless erotic dancing, does not necessarily
involve any speech or words at all, the US Supreme Court has definitively ruled
that erotic expression is protected by the First Amendment.
Exceptions: Although the general rule is that nude dancing is protected free
speech, there are exceptions. Restrictions on expressive activities by
governmental action have been allowed in situations where the restrictions fall
short of an out-right-ban, but constitute instead time, place and manner
restrictions. In a nutshell, courts have said that, although expression covered
by the First Amendment cannot be banned, it can be somewhat restricted in terms
of where, when and even how that expression is presented. With respect to nude
dancing, the US Supreme Court has ruled that adult entertainment businesses
--e.g., nude dancing establishments -- while protected by the First Amendment
from being banned completely, can be reasonably regulated through municipal
ordinances in time, place and manner, e.g., the place where they are located,
the hours of operation, etc.
For example, in the case of Renton v. Playtime Theaters, Inc., 475 US 41 (1985),
the US Supreme Court ruled that a city ordnance that prohibited adult motion
picture theaters from being located within 1,000 feet of any residential zone,
single or multi family dwelling, church, park or school was a valid governmental
response to the "serious problem created by adult theaters" and thus satisfied
the dictates of the First Amendment. The court noted that since the ordinance
did not ban adult theaters altogether, but just regulated where they could be
located, it was a content-neutral time, place and manner regulation.
Other responses to Question #3
Question #4
(Sent by an Elementary School Student at Claremont Community 42X in the Bronx)
If you believe in one religion and your parents believe in another
religion, can they force you to worship in their religion against your will?
If they do, is that legal and what are my rights? Do I have grounds to sue,
if I am being forced to worship in a religion that I do not believe in?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
The question seems to focus on the Free Exercise Clause of the
First Amendment to the US Constitution, which says that "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof . . . " However, the US Constitution applies to and governs only "state
action". As its name implies, state action is action by a governmental
authority, such as the Federal, state or local governments. For example, a
Congressional law is state action. A state agency rule is also state action.
When there is state action, the Constitution applies; when there is not, the
Constitution offers no protection. Accordingly, a Congressional law or a state
agency rule could not prohibit the free exercise of religion. However, a family
does not have state action. Therefore, the First Amendment does not prohibit a
parent from requiring that a certain religion be practiced in a family or even
prohibiting that a child worship a religion at all. Consequently, a child
cannot sue his parents to assert that a violation of the Free Exercise Clause of
the First Amendment has taken place.
Apart from the state action problem, the more important underlying concern is
the issue of parental discretion. Parents have great discretion over the
upbringing of their children. Unless there is abuse or other clear instances of
neglect, courts are very hesitant to impose themselves between a parent and a
child. Thus, if a minor were to bring a suit against his parents alleging that
he could not freely exercise the religion he wanted to because he was required,
for example, to attend a church he did not believe in, then a court would most
likely lean very strongly to the side of parental discretion and defer to their
judgment as to how they wish to raise their child.
Question #5
(Sent by an Elementary School Student at Claremont Community 42X in the Bronx)
We would like to read about more Supreme Court cases that deals with
Freedom of Religion. Can you tell me where we might find some more recent
cases?
ANSWER
(Responded by LEGAL Eagle #14, a law related educator from Syracuse, NY)
You can go to the following websites
Recent Supreme Court Cases
then do a search using the keyword "religion"
You should get over 100 "hits." You can also be more specific and add other key words such as: "free exercise," "separation of church and state," or "establishment clause."
Question #6
(Sent by an Elementary School Student at Claremont Community 42X in the Bronx)
If one of your peers bad mouth your religion, what legal action can you take?
ANSWER
(Responded by LEGAL Eagle #1, an attorney from New York City)
The First Amendment of the Constitution gives you freedom of religion. That
means that the government cannot force you to practice a particular religion or
to practice any religion at all.
The First Amendment has another part to it that gives people freedom of speech.
This means that people are free to express their opinions without having to be
scared that they will be punished.
This means that someone can badmouth your religion, even if it makes you really
mad. There is no legal action that you can take to stop him. While this may
seem strange to you, it is a very important principal in our country. If people
could not express their opinions on subjects - even opinions that a lot of other
people do not like - then they would not really be free.
So you cannot take legal action to stop someone from badmouthing your religion,
but you have freedom of speech also. This means that you can express your
opinion and try to explain to the other person why your religion is good or why
that person should be tolerant of all religions.
Other responses to Question #6
Quetion #6A
(Sent by a middle school student at Camden High School in Camden, NY) If this student's "bad mouthing" is persistent and his sole purpose of making these statements was to get a rise out of the other student, could this then be considered harassment? And would this
harassment be considered a felony?
ANSWER
(Responded by LEGAL Eagle #6, an attorney from New York)
In most cases, language alone by one student directed at another,
without action by the "bad mouthing" student or consequences for the
student at whom directed, will not constitute a criminal or civil violation.
Both freedom of religion and freedom of expression are entitled to
protection by the First Amendment to the U.S. Constitution. A Court will
provide much leeway to speech, even if it is unpopular or hurtful.
There are some circumstances in which speech could consitute a crime
or civil violation, but it would depend on the language, the circumsances,
and the people involved. For instance, if a school employee made
derogatory statements about a student's religion, this could trigger state
and federal violations of the student's civil rights.
In rare instances, some comments can lose their free speech protection,
for instance yelling "fire" in a crowded theater. Derogatory comments, if
purposeful and false, or purposeful and bad enough that a court would
find that the student was injured, could allow the student to bring a civil
action for damages.
Question #7
(Sent by an Elementary School Student at Claremont Community 42X in the Bronx)
Before the First Amendment (The Establishment Clause) was written, was the
Church and Government separate?
ANSWER
(Responded by LEGAL Eagle #2, an attorney from New York City)
The First Amendment to the Constitution, which provides that Congress shall
make no law establishing religion, was passed in 1791. Prior to that, the
federal government operated under the Constitution as it had been originally
passed in 1787 which did not contain any provision dealing with religion. To the
best of my knowledge, church and state were never considered one institution in
the United States. However, prior to 1776, the English were in control of
affairs in America.
The Church of England (called the Episcopal Church in the United States) is the
state religion of England This Church was founded by King Henry VIII of England
who was excommunicated from the Roman Catholic Church over his divorce and
remarriage. The King or Queen of England is both the head of state and head of
the Church of England, although only figuratively. Presently, the real person
in charge of the government is the British Prime Minter and the real head of the
Church of England is the Archbishop of Canterbury.
The importance of the establishment clause of the First Amendment is that the
federal government (and state governments by way of the 14th Amendment) cannot
require the public to adhere to one religion or another. The courts have also
held that the government may not become entangled with religion so as to
prevent even the appearance that the government favors one religion or another.
Thus, religion is not taught in public schools and the government is not
supposed to display religious symbols at Christmas without giving equal time to
other faiths.
Other responses to Question #7
ANSWER
Question #9
(Sent by a High School School Student at Roosevelt in the Bronx)
Why wasn't Gideon's second trial (Gideon v. Wainwright 372 U.S. 335) in the
state of Florida considered double jeopardy?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
The Fifth Amendment to the US Constitution reads, in part: ". . .
nor shall any person be subject for the same offense to be twice put in jeopardy
of life or limb". This clause, known as the Double Jeopardy Clause, prevents
either state or federal authorities from bringing the same person to trial more
than once for the same offense after he has been acquitted by a jury. It is
designed to prevent unfair harassment of a person by repeated attempts to
convict him of a crime of which he has already been found not guilty.
However, there are exceptions to this rule. For example, if a defendant is
convicted, appeals his conviction and the appellate court finds a legal error
and orders a new trial, then the defendant may not plead double jeopardy to
prevent that new trial. The US Supreme Court affirmed this issue in Forman v.
US, 361 US 416 (1960). The Court stated: "It is elementary in our law that a
person can be tried a second time for an offense when his prior conviction for
that same offense has been set aside by his appeal."
Your question asks about Clarence Earl Gideon's retrial. Since his first trial
was found to have a constitutional error, e.g, he was not afforded his Sixth
Amendment right to a lawyer, that verdict was set aside. Consequently, based on
Forman v. US, the state could retry him on the murder charge because he was, in
reality, not convicted of anything. On an aside, I would recommend reading
Gideon's Trumpet by Anthony Lewis for an interesting personal history of Mr.
Gideon's struggle.
In addition to the one mentioned above, the following are also other exceptions
to the Double Jeopardy Clause: (i) the jury is unable to agree on a verdict,
e.g, a hung jury, (ii) mistrials for manifest necessity, e.g., the defendant
gets appendicitis in the middle of the trial, and (iii) a breach upon an agreed
upon plea bargain by the defendant, e.g., when the defendant breaks a plea
bargain, his plea sentence can be vacated and the original charges can be
reinstated.
Question #10
(Sent by a High School School Student at Roosevelt in the Bronx)
How come an alleged perp can be found not guilty of felony murder, and then
be tried in civil court for wrongful death? Is this not double jeopardy?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
The Fifth Amendment to the US Constitution reads, in part: ". . .
nor shall any person be subject for the same offense to be twice put in jeopardy
of life or limb". This clause, known as the Double Jeopardy Clause, prevents
either state or federal authorities from bringing the same person to trial more
than once for the same offense after he has been acquitted by a jury. It is
important to note, however, that a person is only protected by the Double
Jeopardy Clause when he is in "jeopardy [of loss] of life or limb", which means
in a criminal trial.
Contrary to criminal trials, in a civil case, if the defendant loses, he won't
lose life or liberty as in a criminal trial, but will only be subject to money
damages. Thus, because there is no threat to life or limb, the Double Jeopardy
Clause does not apply. Another important reason for the Double Jeopardy Clause
is that in a criminal case, the opposing party is the government with its
unlimited resources and police power. This is not true in a civil case where
the opposing party is another individual. Consequently, parties in a civil case
do not need the Constitutional protections of the Double Jeopardy Clause to
protect them.
Your question fits the fact pattern of the O.J. Simpson case in California,
where the defendant was acquitted of murder, but found liable for wrongful
death. (Wrongful death basically means that a jury found that the defendant
caused the person's death.) These different outcomes can occur because, as
stated above, the Double Jeopardy Clause does not apply to civil cases. In
fact, a defendant can even be convicted in a criminal case for murder and still
be tried in a civil court for wrongful death (which is a pretty easy case to
prove). There are, however, certain court rules that do apply in civil cases
(that are similar in result to the Double Jeopardy Clause) that do prevent a
plaintiff from repeatedly bringing the same claim against a defendant.
Other responses to Question #10
Question #11
-What criterion is used to determine whether a search incident to an arrest
is valid?
-What information do judges use to determine whether probable cause existed?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
In a nutshell, a search incident to an arrest is a search by a
police officer who arrests a person either with or without a warrant of that
person and his immediate area for weapons and evidence. The purpose of this
exception to the Fourth Amendment is to allow the police officer to search for
weapons that may be used against him or to search for evidence that may be
destroyed by the person being arrested.
The standard to determine whether or not a search incident to arrest is valid is
"reasonableness." The reasonableness of a search incident to arrest (decided by
a judge) depends on the "facts and circumstances--the total atmosphere of the
case" and those facts and circumstances must be viewed in the light of the
Fourth Amendment principles. A reasonable search, for example, would be one
that is made of the area in the "immediate control" of the person being
arrested. For example, in Chimel v. California, 395 US 752, (1968), a person was
arrested in his home pursuant to a valid search warrant. The police officers
then proceeded to search the entire house. This search was found invalid
because it was too broad. The person arrested was in the living room and the
police officers searched the upstairs as well. Consequently, the Supreme Court
held: "There is no comparable justification . . . for routinely searching any
room other than that in which an arrest occurs--or, for that matter, for
searching through all the desk drawers or other closed or concealed areas in
that room itself. Such searches, in the absence of well-recognized exceptions,
may be made only under the authority of a search warrant. The 'adherence to
judicial process' mandated by the Fourth Amendment requires no less." Chimel at
763.
Other responses to Question #11
Question #12
We are learning about opening and closing statements, how to pose
appropriate questions, what are the different types of objections, how to
respond to them, and hearsay. This is all very difficult and confusing,
can you help us with understanding these courtroom procedures?
ANSWER
(Responded by LEGAL Eagle #2, an attorney from New York City)
1. Opening and Closing Statements
The tone and direction of a lawyer's opening statement will depend on whether
the lawyer represents the plaintiff (the party having the burden of proof) or
the
defendant. The burden of proof is an extremely important point to understand
from a procedural perspective. If the plaintiff (the party bringing
the law suit) does not have enough facts admitted into the court record, he or
she cannot carry the burden of proof and will lose the case. If there is a rule
of evidence (such as the hearsay rule) that prohibits a party from introducing
the evidence at trial, then it never gets into the record and the jury never
hears about it.
If you're the lawyer representing the plaintiff, your opening statement will be
to
tell the jury what facts you're going to prove at trial and why those facts
support the claim that your client has against the defendant. If you're the
defendant's lawyer, you will do just the opposite. You will say why those facts
either can't be proved or don't amount to a hill of beans. You may also tell
the jury that you will introduce other facts that contradict the plaintiff's
story. Closing statements come at the end of the trial and explain to the jury
in plain English what they just heard and saw in the courtroom. Remember Johnny
Cochran saying "If it don't fit, you must acquit." The jury remembered that OJ
Simpson's hand did not fit in the bloody glove and found that the evidence did
not prove his guilt beyond a reasonable doubt. I would point out that a
lawyer's opening and closing statements are not evidence but oral argument by
the lawyer.
2. Hearsay
When a defense attorney, for example, hears that the plaintiff's attorney is
asking a witness a question that calls for hearsay, he or she should object.
The plaintiff's lawyer will then try to explain to the judge, at a sidebar
conference perhaps, why the question is covered by an exception to the hearsay
rule. The judge then rules on the objection. If the judge's ruling is believed
to be wrong, the losing party can appeal the case on the ground that the judge
made an error. Sometimes a case be taken all the way to the U.S. Supreme Court.
Hearsay is a statement by a witness as to what another person said out of court
when the other person's statement is offered to prove the truth of the matter
asserted. That is if someone says that Johnny broke the window and that he
knows that to be true because Susie told him so, then the statement would be
hearsay. That type of evidence is not admissible in court under the rules of
evidence. However, if you are trying to prove something about Susie, for
example that Susie "thought" Johnny broke the window, you can introduce the
statement at trial because it falls under the "state of mind" exception to the
hearsay rule. That is, you're offering Susie's statement to prove her state of
mind, not that Johnny in fact broke the window. The reason this is fair is that
the witness can be cross-examined by the opposing lawyers.
Other responses to Question #12
Question #13
We visited a judge, and we are talking about how you can not be convicted
of the lesser felony if not for the higher felony. For example, we saw a
case involving murder 2 and assault. Why can't you be found guilty of one
and not the other?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
The felony murder doctrine allows someone whose conduct brought
about an unintended death in the commission or attempted commission of a felony
to be prosecuted for murder. In other words, someone can be prosecuted for
murder even though he did not intend to commit a murder, so long as he intended
to commit a felony from which the death of an individual resulted.
A conviction for murder requires a certain level of intent (the old common law
rule was a showing of "malice.") The prosecution has to prove that the defended
had sufficient malice (or one of the other elements of intent) to commit the
murder. But what about the following scenario: someone decides to rob a bank.
He goes into the bank and points a gun at a person and demands money. He gets
the money and as he leaves, he trips and the gun accidentally goes off and kills
one of the bank tellers. This person could clearly be convicted of robbery.
But what about murder? Did he have the intent (or malice) necessary to kill the
bank teller? It does not appear so because the gun just accidentally went off
and someone died. What if the gun wasn't even loaded and the bank teller died
of fright? The felony murder rule solves these difficulties. Since the bank
robber had the intent to commit the underlying felony, e.g., he intended to rob
the bank, the malice necessary for there to be murder is implied from him
committing the bank robbery. In other words, malice is implied from his intent
to commit the underlying felony.
There are several limitations upon the felony murder rule, which vary from state
to state. One limitation is the fact that the defendant must be guilty of the
underlying felony in order to be convicted of felony murder. Applying your
question to the example above, if the defendant is not convicted of the
underlying felony, the robbery, then there is no underlying felony and, thus,
not the sufficient level of intent necessary to convict him of murder.
Therefore, felony murder does not apply. Another limitation is that the felony
murder rule is limited to felonies that are inherently dangerous because only
dangerous felonies have the sufficient intent to impute to the homicide.
In the above example, if the felony murder rule did not apply, the defendant
could, however, still be convicted of robbery and some other type of homicide,
such as manslaughter, which has a lower intent threshold than murder. The
reason prosecutors would want to prosecute felony murder in the above example,
however, is that a conviction for murder carries stiffer penalties than does a
conviction for manslaughter.
Question #14
We also saw jury selection. What kinds of questions do you ask to find out
if the person could be impartial or actually partial to your client (if you
are the defense attorney)?
ANSWER
(Responded by LEGAL Eagle #10, an attorney from New York City)
There is no magic formula to what type of questions you ask during a jury
selection if you are one of the attorneys. Sometimes it is a matter of
asking some general questions and seeing and feeling what the "vibes" are.
Obviously you start by flat out asking a person if they can be fair and
impartial. They almost always insist that they can be, so you have to
proceed on a more subtle basis by asking questions about their backgrounds
and feelings so you can draw out subtle prejudices or inferences. You ask
about prior experiences on juries, as crime victims or arrestees, about their
loved ones, about their jobs and families, about how they would react to
pressures from fellow jurors and whether they would be able to follow the
judge's instructions on the law regardless of their feelings about the law.
The ones with overt problems and prejudices usually get weeded out early so
the rest ends up being somewhat intuitive. It's very difficult because
people can be difficult to read so you just try your best and learn from
experience both in court and out.
Question #15
We are studying cases about the exclusionary rule. Can you give
me any information on the opinions of people who believe the evidence
should still be used even when actions of the police were inadvertent?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from New York City)
The Fourth Amendment to the US Constitution protects people against unlawful
searches and seizures by the police. The exclusionary rule requires that where
evidence has been obtained in violation of protections of the Fourth Amendment
(e.g., no warrant was obtained, etc.) that the illegally obtained evidence
cannot be used at the trial of the defendant. It is thus excluded.
The good faith exception is an exception to the exclusionary rule. This
exception provides that evidence is not to be excluded where that evidence was
discovered by officers acting in good faith and in a reasonable, though
mistaken, belief that they were authorized to take those actions. For instance,
if the police search an apartment with a search warrant that was later found out
to be, through no fault of the police, not properly obtained. In United States
v. Leon, 468 U.S. 897, (1983), the US Supreme Court ruled that the exclusionary
rule "should not be applied so as to bar the use in the prosecution's case in
chief of evidence obtained by officers acting in reasonable reliance on a search
warrant issued by a detached and neutral magistrate but ultimately found to be
invalid."
The Leon case was decided 6-3. The Court's opinion was delivered by Justice
White. This is the opinion to read. For the opposing view, one can read the
dissenting opinions of Justices Brennan and Stevens.
Question #16
What is the definition of *the right of association,' and how does it fit into the first amendment?
ANSWER
(Responded by LEGAL Eagle #4, an attorney from Syracuse, NY)
Let's start with the First Amendment to the
US Constitution, where you will recall it is stated [in
part], *Congress shall make no law ... abridging
[limiting] the freedom of speech, ... or the right of the
people peaceably to assemble....* These are pretty
inter-connected, in that a speech without an audience
is a fairly hollow privilege. The right of association
(assembly) allows people to (peacefully) gather to
discuss issues and concerns, without fear of a
reprisal from the governmental authorities, such as
being arrested just for expressing a view contrary to
the majority.
Much of the recent Supreme Court review of this
concept has focused on the right to associate for
political purposes, through the process of voting,
which is usually considered to be absolute. In
Timmons v Twin Cities Area New Party, ____ US
____, 1997, the Supreme Court noted, *The First
Amendment protects the right of citizens to associate
and to form political parties for the advancement of
common political goals and ideas.* It also indicated,
however, *... that States may, and inevitably must,
enact reasonable regulations of parties, elections, and
ballots to reduce election and campaign related
disorder.* In other words, while the right to assemble
peaceably is guaranteed, certain structures are
required to keep our systems free from chaos, and it
has been left to the States, and not the federal
government, to regulate elections as they deem
appropriate.
Another flash-point of *association* or assembly
concerns in recent years has been over the issue of
abortion rights or its protest. The Supreme Court in
1994 stated, in Madsen v Women's Health Center,
Inc., *but petitioners are not enjoined [meaning there
would not be an Injunction preventing something] from
associating with others or from joining with them to
express a particular viewpoint. The freedom of
association protected by the First Amendment does
not extend to joining with others for the purpose of
depriving third parties of their lawful rights.* I hope this
helps clarify the breadth and limits to the *right of
association.*
Other responses to Question #16
Question #17
Why is school and religion not together? Why can't teachers or principals talk to students about religions?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
Below is an explanation concerning teaching about religions in public schools as compiled by the U.S. Department of Education.
“Teaching about religion: Public schools may not provide religious instruction, but they may teach about religion, including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture)-as-literature, and the role of religion in the history of the United States and other countries all are permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature, and social studies. Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students.”
http://www.ed.gov/Speeches/08-1995/religion.html
Question #18
Why is there an Amendment on Freedom of Speech, when some things you say can be used against you in court?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
The First Amendment prevents Congress from making any laws restricting an individual’s freedom of speech. The phrase, “anything you say can be used against you in a court of law” refers to the Miranda warnings which come from the 5th Amendment. The Fifth Amendment reads in part that a person shall not be compelled in any criminal case to be a witness against himself. This means that after you are arrested you have the right to NOT speak to the police. But if you do speak to the police, or choose to speak in a court room, then what you say can be used as evidence that may convict you. So you do have freedom of speech (1st Amendment), but you also have the freedom “not to speak.” (Fifth Amendment)
http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti
Question #20
Does having a broken tail light on your car give the police the
right to search and seize that car?
ANSWER
(Responded by LEGAL Eagle #10, an attorney from New York, NY)
A broken tail light gives the police the right to stop a car and to issue a
summons. If anything occurs during the stop which causes the police officer
to either reasonably fear for his or her safety or to reasonably suspect that
other criminal activity is afoot (for example: driver is drunk, car smells of
marijuana, ignition is popped, gun or drugs are in plain view etc.....), then
a greater degree of intrusion such as a search, arrest of the driver and
occupants and/or a seizure of the car may occur. A traffic violation such as
a broken tail light alone is not enough, but other objectively, credible and
reasonably perceived occurrences can give cause for a greater degree of
intrusion on the part of the police.
Question #21
Is it OK if public school students pray in school?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
Students are allowed to pray ON THEIR OWN in public schools. But school officials have some discretion (authority) to make sure that the student praying does not interfere with school instruction.
See the section titled, “Religious Expression in Public Schools” in the document below:
http://www.ed.gov/Speeches/08-1995/religion.html
Question #22
Why is the President of the United States limited to 2 terms. Why can't the President stay in office as long as he or she wins the elections, and is doing the job well?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
Up until 1951, a President could legally serve as many terms as he wished (provided he kept winning the Presidential election). The first President of the United States, George Washington, only served two terms despite being very popular. Like many things that he did during his time in office, Washington set a precedent that Presidents "should" only serve two four-year terms. Remember that Washington and others were wary of a President who became so strong that they became like a king. So for 150 years no President served more than two terms in office. In 1940, President Franklin Delano Roosevelt decided to run for an unprecedented third term as President. Roosevelt was very popular at the time and he believed that it was necessary for him to run for a third term because of the domestic (the U.S. economy was still recovering from the Great Depression) and international (Germany had invaded Poland in 1939 starting World War II) situations. In 1944, Roosevelt again ran for re-election (The U.S. was now an active combatant in World War II) and won. FDR died in 1945 before he could complete his fourth term in office. The U.S. Congress (with a majority of Republicans in both Houses) on March 21, 1947 proposed a Constitutional Amendment to limit a President's term in office. The 22nd Amendment to the Constitution which limited a person to two four-year terms as President (this Amendment did not apply to the sitting President at the time, Harry S. Truman, since it would have been retroactive) was ratified on February 27, 1951. Also, a President that came to office in order to complete a term of his predecessor could serve only one full four-year term, if he served more than two years of his predecessor's term). Since the 22nd Amendment was passed in 1951, some people have called for it's repeal since they wanted a popular two-term President (Eisenhower, Reagan, Clinton) to be able to run again. Supporters of repealing the 22nd Amendment argue that a President automatically becomes a "lame duck" once he or she is elected to a second term. They argue that a popular President should be allowed to serve if he/she is continually elected. In order for a person to serve more than two terms as President, the 22nd Amendment would have to be repealed by another Constitutional Amendment. In the 1990s there was a term-limit movement which sought to limit U.S. Congressmen to a certain number of terms in office.
For additional information, check out the following web sites:
Question #24
If we ask for a moment of silence, instead of a word of prayer, is that a problem violating the Constitution?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
Presently about 20 states have “moment of silence” laws. See the article below:
http://www.freedomforum.org/religion/2000/2/11prayermoments.asp
While some courts have ruled that moments of silence are allowed, some groups are still challenging the legality of these school mandated (required) practices.
http://www.fac.org/weekly/5-05-97/gasilence.htm
Also see the below guidelines prepared by the U.S. Department of Education:
http://www.ed.gov/Speeches/08-1995/religion.html
Question #26
Why are the police allowed to search people, but the school police aren't allowed?
ANSWER
(Responded by LEGAL Eagle #15, an attorney & teacher from NY)
Not true. In fact the regular police are held to a higher standard before they can conduct a search. Ordinarily the police must have a warrant. However, case law has created a number of exceptions to the need for a warrant, e.g. stop-and frisk.
Security officers, deans, administrators, teachers and other school staff have much more leeway to search students in and around the school. Only a reasonable suspicion must be shown to conduct a search.
Question #27
Why do the judges give life sentences, and the criminals don't do the full time given?
ANSWER
(Responded by LEGAL Eagle #10, an attorney from New York, NY)
Generally a life sentence is part of an "indeterminate term" which has a
minimum term for a certain number of years (typically between 15 and 25) and
a maximum of the person's natural life. The sentenced person becomes
eligible for parole release once the minimum term is completed and is
supposed to be supervised by parole for the rest of his or her life. This is
the way it is done in New York unless the person has been sentenced to a term
of life without parole which is a relatively new sentence on the New York
books and means that the person never gets out.
Other states have sentencing laws on their books which also provide for a
certain term of years which must be served in a "life" sentence before the
sentenced person becomes eligible for parole release.
Other responses to Question #27
Question #30
What 5 critical decisions has the Supeme Court made which
affect our lives today and future generations?
ANSWER
(Responded by LEGAL Eagle #10, an attorney from New York City, NY)
It is challenging to come up with only five U.S. Supreme Court decisions
which affect our lives and our future since almost each of the Supreme
Court's decisions have either a direct or indirect affect on our lives to
some degree. The following are certainly among the most critical:
- Marbury v. Madison, which established the Judiciary's power to review
legislative actions and measure their Constitutionality. A very fundamental
and important concept in our governmental structure.
- Brown v. Board of Education, outlawed racial segregation in our
educational system and in public accomodations. Also fundamental law but
unfortunately, still very much an area filled with difficulty and tension in
this Country.
- Roe v. Wade, struck down laws limiting or preventing a woman from
obtaining an abortion during a large portion of her pregnancy. A major
decision affecting individual rights which is also unfortunately an area
still filled with difficulty and tension.
- Miranda v. Arizona, among many other important decisions affecting an
individual's Constitutional rights in the face of the government's police
function. Imposes an obligation upon the government to inform citizens of
their rights under the Constitution and a sanction when the obligation is not
fulfilled.
- Baker v. Carr, reaffirms the principle of "one person - one vote" and
guides laws and decisions affecting voting and governmental representation in
this Country.
Other responses to Question #30
Question #31
Can a school prevent students from wearing hats in the building?
Answer
(Responded by LEGAL Eagle #11, an attorney from New York, NY)
Yes, a school can make reasonable regulations regarding student dress.
However, if the hat was a yarmulke or some other headgear that was worn for
religious reasons then that might be a constitutionally protected activity
that the school couldn't interfere with.
Question #32
Are the statements made by John Rocker in a recent issue of Sports Illustrated
a form of protected "free" speech"?
Answer
(Responded by LEGAL Eagle #10, an attorney from New York, NY)
The whole issue surrounding John Rocker's statements in the magazine
article and major league baseball's response to it is a complex one on many
social, political and legal levels but at the most basic level the answer is
that Rocker's statements are not "protected" free speech unless he is facing
some kind of penalty imposed directly or indirectly by the government.
The First amendment to the U.S. Constitution and its many State
counterparts protect citizens from unconstitutional "state action" which is
action that emanates from the government outlawing conduct or speech which
the Constitution protects. While the Constitution protects free speech, with
some important limitations not applicable here, Rocker's interests are not
being threatened by the government. Major league baseball and his team are
private entities so they are free to a certain extent to take whatever action
they wish to against him. His legal rights are private and contractual and
do not emanate from the Constitution.
By way of illustration, it would have been different if Rocker chose to
make his statements in a public park and was arrested for it. That would
involve "state action" arguably violating his Constitutional rights. Here
the actions of baseball and his team do not involve "state action" and
therefore do not violate his Constitutional rights.
Other responses to Question #32
Question #33
If the supreme court ruled in favor of Yoder, how come the states still require that children must stay in school until age 16?
(Responded by LEGAL Eagle #21, a law student from Syracuse, NY)
Under a state's soverign "police power", a state is allowed to regulate for the health,safety,welfare, and morals of its community. Therefore, a state may enact a manadatory age of school partiticaption. This rationale is that the more schooling a child has, the better educated citizen he or she will become. This will lead to economic self-sufficiency and involvement in the political process.
The issue is Yoder was whether this law of general appicable(school until the age of 16)had to be exempted for a specific religious group in order to allow that group(the Amish) to freely exercise their religious belifs. The Court held that eventhough the state objective of an edcuated citizenship would be hindered, Amish children predominantly remained in their community and involved themselves in agricultural pursuits. Therefore, forcing the Amish to attend school until the age of 16 would vioalte a basic precept of the Amish religion(informally teaching of farming activities). This is a rare decision. The court historically will Not exempt a religious group from a law of general appicability.
Question #34
We were discussing separation of church and state. A student asked, "If there is separation of church and state, why are people asked to swear on a Bible in a law court?????"
(Responded by LEGAL Eagle #9, an attorney from NY)
The simple answer is that practices like swearing an oath which
contains an appeal to God or to the Bible are so deeply embedded in
the history and tradition of this country that they have been found
not to be in violation of the "establishment clause" of the
Constitution. See, Marsh v Chambers, 463 US 783, 103 SCT 3330 -[The
practice of opening the state legislative sessions with prayer was
found not to be improper.] Specifically, the first amendment provides
in part that "Congress shall make no law respecting an establishment
of religion , or prohibiting the free exercise thereof...". However,
the Constitution does not necessarily require complete separation of
church and state. See, Lynch v Donnelly, 405 US 668, 104 SCT 1333.
The test is whether the thing promotes a particular religious
expression over others. If it does, then it is most likely improper or
unconstitutional. On the other hand, the requirement of swearing an
oath by placing a hand on the Bible is not intended to serve any
religious purpose or to support any particular religious belief. Also,
an individual can always decline to swear on the Bible and choose to
simply "affirm" to tell the truth instead.
Other responses to Question #34
Question #35
I was wondering what the current names of the State Supreme Court is?? And Who is the Chief Justice of the Supreme Court is??
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
Your question is a little unclear since I'm not sure whether you are asking about the Supreme Court of the United States or a supreme court within a specific state like New York or California.
If you are asking about the Supreme Court of the United States then here is your answer:
The Chief Justice of the Supreme Court of the United States since 1986 is William Rehnquist.
The other 8 U.S. Supreme Court justices are:
Ruth Bader Ginsburg
Stephen Breyer
John Paul Stevens
Sandra Day O'Connor
Antonin Scalia
Anthony Kennedy
David Souter
Clarence Thomas
You can read more about the justices at the following website:
http://www.usscplus.com/info/justices.htm
Question #36
Should the federal government enact hate crime legislation?
ANSWER
(Responded by LEGAL Eagle #10, a lawyer from NY, NY)
I would say that the Federal government should enact hate crimes
legislation only if it serves to proscribe and punish harmful conduct which
is not already covered by other federal statutes. While no one can disagree
with the proposition that "hate crimes" are harmful, wrong and should be
prohibited, once they are enacted into law as statutes they sometimes build
in the unintended consequence of making it more difficult to obtain
convictions for them. This is because the imputation of a stated motive,
such as prejudice against a certain type of group, builds in an extra element
that a prosecutor must prove in order to get a conviction. This may be
difficult to achieve in certain types of circumstances and may actually make
the stated objective more difficult to obtain.
Other responses to Question #36
Question #37
How much evidence must the State produce in order to find a person guilty of murder in the first degree?
ANSWER
(Responded by LEGAL Eagle #11, a lawyer from NY, NY)
This is an easy question. For any crime, whether the crime is murder or
stealing a candy bar, the standard of proof is the same. The state must
prove the defendant guilty beyond a reasonable doubt. That means that all
members of the jury must be convinced beyond a reasonable doubt that the
defendant comitted the crime before the defendant can be found guilty.
Other responses to Question #37
Question #38
Is it true that the Supreme Court recently issued a ruling allowing law enforcement officers to make a "pre-text" traffic stop?
ANSWER
(Responded by LEGAL Eagle #14, a law-related educator from Syracuse, NY)
The Whren decision (1996) might be the case that you are referring to.
Question #39
Can a police office search anyone without any cause?
ANSWER
(Responded by LEGAL Eagle #10, a lawyer from NY, NY)
A police officer may not search anyone without any cause. Courts have all
interpreted the 4th amendment's guarantee against unreasonable searches and
seizures to mean that for a police officer to even approach a person and
request information from them or impede their liberty in any way there must
be at least an objective credible reason for the approach. If the intrusion
goes any further (i.e. a pat-down or a search) there must be either
reasonable suspicion or probable cause to believe that a crime has been, is
being or will be committed.
Searches that are conducted for no reason will result in the items recovered
being suppressed in court.
Question #40
Are peremptory challenges a constituitional guarantee?
ANSWER
(Responded by LEGAL Eagle #10, a lawyer from NY, NY)
Peremptory challenges themselves are not a Constitutional guarantee. They
are usually authorized by statute. The right to a trial by a jury of your
peers however is a constitutional guarantee and accordingly, constitutional
issues such as due process and equal protection of the law are invoked when
peremptory challenges are used solely to exclude members of some protected
classes (race, sex, gender, physical handicaps etc...)
Question #41
Should the felony murder doctrine be abolished?
ANSWER
(Responded by LEGAL Eagle #10, a lawyer from NY, NY)
I don't think the felony-murder doctrine should be abolished and I don't
understand why anyone would think it should. If a death is caused during the
commission of a heinous felony, I think criminal liability for the murder
should attach even if the death wasn't intended. People shouldn't be
committing these felonies in the first place.
Question #42
How long is a "search warrant" active for beyond the time and date for which it was signed?
ANSWER
(Responded by LEGAL Eagle #10, a law clerk from NY, NY)
Under Section 690.30 of the Criminal Procedure Law, a search warrant issued
in New York must be executed within 10 days from the time it has been issued,
otherwise it is deemed "stale" and items recovered pursuant to it will not
be admissible in evidence.
Other responses to Question #42
Question #43
When a state supreme court rules that a state law is
unconstitutional, does that make the law void, meaning it cannot be used to
bring another case before the court?
ANSWER
(Responded by LEGAL Eagle #3, a lawyer from NY, NY)
Your questions asks about state courts, but the analysis is really the
same for both state and federal courts. Courts have the power of "judicial
review", which means that they alone can decide that a certain law violates
the U.S. or its own state's constitution. What in effect happens is that a
court states that the law that was passed by the legislature, (who have
been elected by the people and thus speak for the people), will be stricken
and will have no further force or effect. For example, say Texas passed a
law saying that from now on people would be sent to jail if they burned a
Texas or US flag. (This was a real case Texas v. Johnson) The way this
law came into being was that the people of Texas elected certain state
senators and state assemblymen who voted for this bill and the governor
then signed it into law. The law thus expressed the will of the people.
But then the state (or federal) court looks at the law and sees that it, in
reality, limits a persons ability to express him or herself. Flag burning
is considered projectable "speech". Such a prohibition runs against the
First Amendment to the US constitution (and probably the Texas Constitution
as well) which says that no law can be passed which limits freedom of
speech. Because the court decides that the law violates the Constitution,
the law is stricken from the books. No one could be prosecuted for
violating it any longer because the prohibition against flag burning would
no longer be law.
"Judicial review" is an immense power because judges are able to say what
is constitutional and what is unconstitutional; this power is even more
striking for federal judges who have life time tenure and are unelected.
Judges therefore write opinions, because they are supposed to interpret the
laws and not merely make up what they think the law should be. A good
judicial opinion is one that bases the court's decision on its previous
cases that have interpreted the Constitution.
Other responses to Question #43
Question #44
A student asked me, if a person is an athiest, and is being sworn in at court, does he place his hand on a Bible, and what would he say?
ANSWER
(Responded by LEGAL Eagle #10, a law clerk from NY, NY)
The procedure that is generally followed when an athiest is called to testify
as a witness in court is that instead of placing a hand on a bible and
swearing to tell the truth, the witness will state that he or she affirms
under the penalty of perjury that he or she will testify truthfully. This
serves the same purpose as the oath.
Other responses to Question #44
Question #45
How long is a cpyrighted document protected?, Can copyrighted documents be sampled?
ANSWER
(Responded by LEGAL Eagle #24, an attorney from NY)
Question: How long is a copyrighted document protected?
Answer: For the life of the author plus 70 years. If the document has an
anonymous author, or if it's "a work made for hire", then for 95 years from
when the work is created. A work is "made for hire" when the maker is either
(1) an employee hired to prepare it or (2) someone who prepares a work for
someone else IF (and only if) (1) the work fits into one of nine classes AND
(2) the person who orders the work prepared and the preparer sign an
agreement, BEFORE the work is prepared, making it a "work for hire".
http://www4.law.cornell.edu/uscode/17/302.html
Question: Can copyrighted documents be sampled?
Answer: If the sampling fits within "fair use".
http://www4.law.cornell.edu/uscode/17/107.html
Question #46
When a person violates a documents use what protects the artists rights?, Does an artist have a right to deny use of their document?, Do copyrights save the artists rights from "Joe Public"?
ANSWER
(Responded by LEGAL Eagle #24, an attorney from NY)
Question: When a person violates a document's use, what protects the
artist's rights?
Answer: The federal courts. The artist has to sue (or threaten to sue) the
violator for copyright infringement.
Question: Does an artist have a right to deny use of their document?
Answer: Yes, the artist has the exclusive right to make copies of the
document, to distribute it, and to make a new document based on the old (a
"derivative work"). http://www4.law.cornell.edu/uscode/17/106.html
Question: Do copyrights save the artist's rights from "Joe Public"?
Answer: Yes, see the answer to the previous question about the artist's
exclusive rights.
Question #47
Can a person vote in elections if they have committed a felony?
If not,how was this decided? Who passed the law?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from NY)
Section 2 of the Fourteenth Amendment to the US Constitution basically
grants to all citizens of the United States the right to vote in Federal
elections, except for those people who participated "in rebellion, or other
crime." Thus, someone who is convicted of a felony is not guaranteed the
right to vote. Each individual state has the power and the right to decide
whether or not convicted felons should be able to vote in a Federal
election, i.e., for President, Vice President, US Senator or US
Representative. Some states, such as Florida, bar convicted felons from
voting in any Federal election for the rest of their lives. Other states,
on the other hand, are not so restrictive, and either permit felons to vote
immediately following conviction, or bar them from voting for only a
certain period of time, such as, for example, five years. Note that this
Section of the Fourteenth Amendment only applies to voting in Federal
elections, not to state or local elections. State constitutions, however,
frequently speak on this issue for their own state and local elections.
Other responses to Question #47
Question #48
If part of a schools dress code is the banning of all hats during school for no apparent reason other than disrespect, can they legally do this? If so, can it be overthrown by a court as in the Supreme Court case in 1969 about the armbands and the fact the Sup. Crt. said: "The freedom of expression does not end at the schoolhouse door."
ANSWER
(Responded by LEGAL Eagle #18, an attorney from NY)
Yes and yes. The First Amendment provides as follows:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances."
Obviously, by its terms, the First Amendment does not restrict the ability of
school authorities to maintain discipline through dress codes. Do courts get
these questions wrong? They certainly do, from time to time. We have to live
with their mistakes until they are corrected. Sometimes court decisions
"interpreting" the Constitution actually fall to the level of (as in Orwell's
1984) calling light darkness and darkness light. But the justices that issue
those decisions violate their oath to "preserve, protect and defend the
Constitution of the United States". The Constitution gives us a "check and
balance" against such misuse of the judicial office, that our society has been
reluctant to employ: the impeachment and conviction of judges that wilfully
violate their oath to uphold the Constitution.
Other responses to Question #48
Question #49
Can the government intervene if a Native American does something illegal, but as part of their tribal beliefs on their Indian Reservation?
ANSWER
(Responded by LEGAL Eagle #15, an attorney and teacher from NY)
As long as the tribal beliefs do not violate fundamental public
policy universally recognized in American culture (i.e.--prohibitions against smoking peyote; human sacrifices; plural marriages, etc.)
Question #50
If a car is pulled over for a traffic violation, does a passenger have a legal right to get out of the car and walk away without being questioned or searched by the police?
ANSWER
(Responded by LEGAL Eagle #10, a law clerk from NY, NY)
No. If a car is pulled over for a traffic violation, the driver must stay and cooperate with the police or risk a justifiable further intrusion of liberty including a search and/or arrest. There may be limits as to what a police officer can do when a person is pulled over for a simple traffic violation but failure to cooperate or walking away will only give the officer a proper reason to be more intrusive.
Other responses to Question #50
Question #51
Why are New York City police officers able to stop and frisk people on the street for no reason? Doesn't this violate our rights?
ANSWER
(Responded by LEGAL Eagle #10, a law clerk from NY, NY)
In New York City and everywhere else in this State, police officers may not stop and frisk a person for no reason, if they do and if it can be shown that there was no objective credible reason to stop and frisk a person, it is a violation of the rights of the person frisked and any contraband or evidence recovered as a result of the frisk would have to be suppressed.
Other responses to Question #51
Question #52
Have there been cases in the past that dealt with a parent's right, or lack thereof, to decide to take their child off of life support in the event of irreversible permanent brain damage? If so, how were they decided?
ANSWER
(Responded by LEGAL Eagle #6, an attorney from NY)
There have been many cases, going back to the 1970s and the first
of the highly publicized end of life cases involving Karen Ann Quinlan, a young woman who suffered irreversible brain damage. The U.S. Supreme Court also heard a case about 10 years ago involving another young woman in the Cruzan case. These cases illustrate the difficulties in these kinds of cases -- in Quinlan the parent's request to remove a respirator was granted and in Cruzan the request of the parents to remove a feeding tube was denied.
I will assume that your question is related to younger children still living with their parents. In cases involving young adults over 18, removal of life support often comes down to whether the patient had ever expressed any wishes about termination of life support and whether they would want to live after suffering injuries and incapacity. With young children, the issue comes to the child's best interests. Parent do make treatment decisions for their children, but those decisions have to be in the best interests of the child. They cannot decide against a treatment for a child if it is in the child best interests. The same standard applies to the termination of life support.
The best answer I can provide to your question is that it would depend on what the doctor's recommendation was about treatment, the patient's medical prognosis, and the prevailing societal ethic about when it is appropriate to end life support. Assuming the brain damage was irreversible, it would also have to be severe to the point that the child had no consciousness and no prognosis for improvement to a better state. There could be some cases where a child with irreversible brain damage had a consciousness and could live a quality of life which, although not as full as a person without brain damage, had ought to be respected. Alternatively, if the child was in pain from the brain damage not likely so I've read), termination of life support could be authorized. Again, the standard is the patient's best interests. Life is favored over death unless the patient's condition and prognosis is extremely dire. It must be more than that the patient's quality of life will be lower than other people. It must be supported by the child's doctor. Finally, it is likely that a court will have to make the final decision authorizing the cessation of life-sustaining treatment.
This is a difficult subject area and it's difficult to explain it in a few paragraphs. I would be pleased to follow this up if you have any further questions.
Other responses to Question #52
Question #53
What degree of Christmas or Hannukah decorations are allowed in public schools? Can you have one without the other?
ANSWER
(Responded by LEGAL Eagle #15, an attorney and teacher from NY)
Religious holiday decorations have not been prohibited in schools nor
on public property; but the governmental entity should not find itself in a position to be viewed as having promoted or advanced religion.
Question #54
What is the definition of a "militia" with regard to the Second Amendment?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from NY)
The Second Amendment has generated a lot of
discussion recently. Much of the debate stems
from the somewhat confusing wording of the
Amendment itself, and from the fact that the US
Supreme Court, and other state and federal
courts, have not decided many cases based on it.
Nevertheless, it is generally agreed that the
word "militia" as used in the Second Amendment
means something analogous to today's National
Guard. The purpose of the Second Amendment is to
provide for the effectiveness of the militia
(i.e., the National Guard), which, as the US
Supreme Court stated in US v. Miller, 307 US 174
(1939), would presumably protect a citizen
against the unconstitutional usurpation of power
by the federal government. The term National
Guard is somewhat of a misnomer. Each state has
its own National Guard; thus there are, in
reality, 50 National Guards, and it is these
National Guards that have the right to keep arms
in order to protect citizens from the
unconstitutional actions by the federal
government. It is important to note that the
Second Amendment alone does not give all citizens
the right to own a gun; rather, it merely
prevents to the federal government from disarming
the members of the National Guard. One last
point: the Second Amendment states that the
militia should be well regulated. Thus, Congress
would most likely have the authority to limit the
arms of the National Guard so that the militia
could be regulated in an orderly and proper
fashion. This issue, however, has never been
decided upon by a court.
Question #55
In U.S vs. Miller 1939, the court voted 9-0 that the right to own a gun applied to well regulated militas, so why do the common person have the right to own a gun?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from NY)
The Second Amendment to the US Constitution reads: "A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Contrary to what many people think, the Second Amendment has very little legal significance in today's law. Both the federal and state governments have the ability to restrict the sale and possession of guns, and there is no fundamental right to own a gun.
How is this so? The Second Amendment was the Framers of the Constitution solution to prevent the federal government from taking the state's power to control its own militia. What the Second Amendment does is it prevents the federal government from disarming the members of the National Guard. (The term National Guard is somewhat of a misnomer. Each state has its own National Guard. There are thus 50 National Guards in the United States). Consequently, the Second Amendment acts only as a restriction on the federal government and prevents the US Congress from passing legislation that would infringe on a state's right to arm and train its own militia/national guard. Contrary to popular belief, this amendment does not give each individual person the right to own his or her own gun. In fact, Congress can restrict the individuals rights to buy, own and use guns. Indeed, the US Supreme Court stated in US v. Miller (the only Supreme Court case to address the scope of the Second Amendment): "the right to keep and bear handguns is not guaranteed by the Second Amendment."
There are some other cases on point. For example, in the case of US v. Warin, a man was convicted of possessing an unregistered machine gun. He argued to the court that he was subject to enrollment in the his state Militia and that therefore he had a fundamental right under the Second Amendment to possess the gun. The court rejected his argument and instead held that the Second Amendment guarantees a collective, rather than an individual right to bear arms, and thus does not give any individual a personal right to own a gun. Similarly, in Quilici v. Morton Grove, the court held that the government can regulate the sale of firearms; in fact, in this case, a local town completely prohibited the possession of guns.
Question #57
Is there a way the court can stop pornograhy from being seen on the internet by younger students?
ANSWER
(Responded by LEGAL Eagle #18, an attorney from NY)
This news release on the Yahoo decision (since recinded) to carry hardcore pornograhy in its on-line store should be helpful.
Question #58
I know what double jeopardy means but what if evidence is found days after the case is closed. Could the defendant be accused?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from NY)
The Double Jeopardy Clause of the Fifth Amendment prevents either the state or federal authorities from bringing the same person to trial more than once for the same offense after he has already been acquitted. It is designed to prevent unfair harassment of a person by repeated attempts to convict him of a crime of which he has already been found not guilty. Thus, the answer to your question is "No" -- the person could not be retried no matter how much incriminating evidence is found after the trial. The government gets one bite at the apple so to speak and if it blows it at the trial, that is it. A related issue is that, under the Sixth Amendment, the accused enjoys a right to a speedy trial. This means that the government can't take too long in prosecuting the accused and therefore only has a certain amount of time to find incriminating evidence. Although the double jeopardy and speedy trial protections might seem a little harsh on the prosecution, especially if subsequent evidence comes up clearly indicating that the now-acquitted defendant did, in fact, commit the crime, it is the prosecution's burden to prove the crime beyond a reasonable doubt at the first trial. The government has a huge array of resources at its disposal, such as police, experts, great sums of money; so if they can't get it right the first time, there is no second chance. One caveat is that the Double Jeopardy Clause is jurisdiction specific. For example, say, hypothetically, someone killed an FBI agent in New York and was prosecuted in Federal Court in NY but was acquitted. Two days later the gun that killed the FBI agent was found and could be directly linked to the now acquitted defendant. The US government could not reprosecute this person. New York State, however, could prosecute him for violation of state murder laws and use the gun as evidence against him in the state crime.
Question #60
What crimes can people commit in order for them to get the death penalty?
ANSWER
(Responded by LEGAL Eagle #3, an attorney from NY)
What crimes can people commit in order for them to get the death penalty?
Although there are numerous crimes that are considered capital crimes, ie, a crime where the death penalty may be imposed, they all have one element in common: the death of the victim. One justification for the death penalty is retribution, i.e., a punishment for what the accused did, and thus death as a punishment is not inflicted where no death of the victim occurred. Thus, a defendant can only be sentenced to death if he took someone else's life. This was not always the case. Historically, people could be executed for all sorts of crimes, from as serious as rape, to minor ones such as horse stealing. Over time, however, the US Supreme Court has held that the Constitution permits the death penalty only where the defendant was actively involved in the killing. Thus, the driver of a getaway car in a bank robbery where the robber shoots a police officer could not be charged with a capital crime; but the shooter could be. It is important to note that a mandatory death penalty is unconstitutional. The 35 or so states (plus the federal government) that have the death penalty have it for certain limited and specific crimes, ie, killing of a police officer, killing of a witness in a criminal case, first degree murder (which is typically a planned killing with premeditation).
The way most state death penalty statutues are crafted is for the trial to be conducted in two phases: the first is the guilt phase, the phase that determines whether or not the defendant actually did the crime. The second is the penalty phases, where the same jury that decided the guilt ways mitigating and aggravating factors, such as if the defendant was abused as a child (a mitigating) or the defendant stabbed the victim 400 times (an aggravating). So, even if the defendant was found guilty of a capital crime at the guilt phase, the jury could decide that there were sufficient mitigating factors to warrant that the defendant not get the death penalty, but life imprisonment instead.
Question #61
There is an elementary school teacher that defies a new dress code policy (it says males must wear neckties) and has received a reprimand. If he and the other teachers in his teachers association want to challenge the dress code in court is it likely that the teachers will win? Have their been cases like this in court, and if so did they turn out in favor of the teachers?
ANSWER
(Responded by LEGAL Eagle #18, an attorney from Syracuse)
The school board's policy will likely prevail. The free speech right in your example is a limited right. A similar case was decided in 1977, against a teacher. In East Hartford Education Association v. Board of Ed. of East Hartford, 562 F.2d 838, the Second Circuit Court of Appeal, en banc (the entire court) decided that a public high school teacher's right to freedom of personal expression, as guaranteed by the First Amendment right of free speech, was not unconstitutionally limited by a school board regulation which required male teachers to wear neckties in school. The teacher's expressive conduct--dressing in a way he felt would give him more credibility with his students--did not demonstrate a "basic constitutional value." Also, the School Board's dress policy for teachers was reasonably related to the board's values of preserving respect for authority and discipline in the classroom.
A quite different situation was presented by the Tinker v. Des Moines School District case (393 U.S. 503) where the U.S. Supreme Court decided in 1969 that the action of students in wearing black armbands to school to protest the U.S. military involvement in Viet Nam, was a symbol and therefore "pure speech" which was protected by the First Amendment. The Court in Tinker struck down the school board rule which banned such armbands. A New York State high school teacher who wore a black armband to school, also to protest the Viet Nam War, won his case overturning his firing, based on his First Amendment right to freedom of speech (James v. Board of Ed. of Central School District No. 1, 461 F.2d 566 (2d Cir. 1972)).
There have been other cases where courts have decided that certain rules, such as requiring short hair for police officers (Kelly, Commissioner of Suffolk Police Dept. v. Johnson, 425 U.S. 238 (1976)), or preventing the wearing of a non-uniform items by U.S. military personnel--a yarmulke by an Air Force officer who was Jewish (Goldman v. Secretary of Defense, 734 F.2d 1531 (D.C. Cir. 1984)), did not violate the first amendment rights of the individuals who challenged them. These rules were reasonably supported by official policies of the organizations--promoting discipline and uniformity--and so individual members had to yield their right of free speech/personal expression, which were more limited in these situations.
So, if the School Board's rule in your example states a reasonable basis for its rule requiring male teachers to wear neckties in school, the courts will probably enforce it.
Questions & Responses Forum