Constitutional Law

by Kanovitz, Jacqueline R; Klotter, John C.; Kanovitz, Michael I.

• ISBN13: 9781593459680
• ISBN10: 1593459688
• Format: Nonspecific Binding
• Copyright: 2005-02-01
• Publisher: MATTHEW BENDER & CO

Table of Contents

History, Structure, and Content of the United States Constitution	p. 1
Section
History of the United States Constitution	p. 3
Early Steps Toward National Unity	p. 3
Articles of Confederation	p. 4
Drafting the Constitution of the United States	p. 4
Ratification by the States	p. 5
Structure and Content of the Constitution	p. 6
Separation of the Powers of the National Government	p. 7
Division of Power between the National Government and the States	p. 9
Powers Granted to the Federal Government	p. 10
Powers the States are Forbidden to Exercise	p. 16
Sovereign Powers Retained by the States	p. 17
The Bill of Rights	p. 19
Applying the Bill of Rights to the States through the Fourteenth Amendment	p. 22
The Fourteenth Amendment as a Limitation on State Power	p. 23
Due Process of Law	p. 24
Equal Protection of the Laws	p. 28
Adjudication of Constitutional Questions	p. 31
Federal Remedies for Constitutional Abuses	p. 33
Summary	p. 34
Freedom of Speech	p. 37
Section
Historical Background	p. 39
Overview of Constitutional Protection for Speech and Expressive Conduct	p. 40
Is Speech Involved?	p. 43
First Amendment Distinction between a Speaker's Message and the Conduct Associated with Communicating It	p. 44
Punishing Speech Because of the Content or Message	p. 47
Obscenity and Child Pornography	p. 48
Fighting Words	p. 51
Threats	p. 53
Incitement to Riot	p. 53
Hate Speech	p. 58
Crude and Vulgar Speech	p. 59
Commercial Speech	p. 61
Restraints on Speech Based on Considerations Other Than the Message	p. 62
Free Speech Access to Government Property: Public Forums and Nonpublic Forums	p. 65
Protecting the Community from Nuisances Linked to Speech	p. 68
Free Speech Access to Private Property	p. 73
Need for Precision in Regulating Speech	p. 74
Summary	p. 77
Authority to Detain and Arrest; Use of Force	p. 81
Section
Introduction	p. 83
Overview of the Fourth Amendment	p. 84
Crossing the Boundary of the Fourth Amendment	p. 87
"Free Zone" for Investigative Work	p. 89
"Seizure" Defined	p. 89
Fourth Amendment Grounds for a Lawful Seizure	p. 94
Investigatory Stops	p. 98
Reasonable Suspicion	p. 102
Scope and Duration of Investigatory Stops	p. 110
Traffic and Other Vehicle Stops	p. 117
Pretextual Traffic Stops	p. 120
Fourth Amendment Requirements for a Constitutional Arrest	p. 124
Probable Cause	p. 128
Requirements for a Valid Arrest Warrant	p. 130
Arrests Inside a Private Residence	p. 137
Use of Force in Making an Arrest or Other Seizure	p. 141
State Arrest Laws	p. 144
Territorial Limits on a Police Officer's Arrest Authority	p. 147
Summary and Practical Suggestions	p. 149
Search and Seizure	p. 153
Section
Overview of the Law of Search and Seizure	p. 155
Definition of a Search	p. 160
Sources of Search Authority	p. 168
Seizures Under the Fourth Amendment	p. 175
The Fourth Amendment Search Warrant	p. 187
Searches Involving People and Personal Items	p. 192
The Terry Search Revisited	p. 194
Search Following a Custodial Arrest	p. 196
Vehicle Searches	p. 202
Search of Vehicles Pursuant to a Detention or Arrest	p. 205
Search of Vehicles Based on Probable Cause ("Automobile Exception")	p. 209
Inventory Searches of Impounded Vehicles	p. 213
Search of Protected Premises	p. 216
Premises Protected by the Fourth Amendment	p. 218
Entry and Search of Premises Under a Warrant	p. 221
Entry and Search of Premises without a Warrant	p. 226
The Exclusionary Rule	p. 232
Summary and Practical Suggestions	p. 239
Eavesdropping and Interception of Communications	p. 241
Section
Introduction to the Laws Governing Eavesdropping and the Use of Interception Devices	p. 243
Fourth Amendment Protection of Communications	p. 244
Eavesdropping	p. 248
Statutory Regulation of Interceptions: Title III of the Omnibus Crime Control and Safe Streets Act of 1968	p. 251
Procedural Requirements for Intercepting Protected Communications	p. 256
Exceptions to the Need for an Interception Order	p. 261
Technologically Assisted Surveillance of Matters Other Than Communications	p. 263
Summary and Practical Suggestions	p. 266
Interrogations and Confessions	p. 267
Section
Introduction	p. 269
The Free and Voluntary Rule	p. 273
Fourth Amendment Exclusionary Rule	p. 278
Overview of the Rules Governing Custodial Interrogation	p. 281
The McNabb-Mallory Delay in Arraignment Rule	p. 283
Protection for the Fifth Amendment Privilege Against Self-Incrimination During Police Interrogations: The Miranda Rule	p. 286
Custodial Interrogation Defined	p. 287
Procedural Requirements for Custodial Interrogations: Miranda Warnings and Waivers	p. 296
Sixth Amendment Right to Counsel During Interrogations Conducted After Formal Charges are Filed	p. 301
Use of Inadmissible Confession for Impeachment	p. 307
Restrictions on the Use of Derivative Evidence	p. 309
Restrictions of the Use of Confessions Given by Accomplices	p. 311
The Requirement of Corroboration of Valid Confessions	p. 312
Summary and Practical Suggestions	p. 313
Compulsory Self-Incrimination	p. 317
Section
Introduction	p. 319
Fifth Amendment Protection Against Testimonial Self-Incrimination	p. 322
Prerequisites for Application of the Fifth Amendment	p. 324
Rules for Invoking and Waiving Fifth Amendment Protections	p. 328
Protection Against Adverse Consequences from Exercising then Privilege Against Self-Incrimination	p. 331
Self-Reporting Laws and the Fifth Amendment	p. 331
Fourth Amendment Protection Against Bodily Self-Incrimination	p. 332
Requirements for Appearance Evidence	p. 335
Requirements for Bodily Evidence	p. 337
Requirement for a Search Warrant to Explore for Bodily Evidence	p. 340
Strip Searches and Body Cavity Searches	p. 344
Summary and Practical Suggestions	p. 346
Right to Counsel	p. 349
Section
Overview of the Sixth Amendment Right to Counsel	p. 351
The Indigent Person's Right to Appointed Counsel	p. 352
The Right to Assistance of Counsel in Non-Trials Proceedings: Critical Stages of the Prosecution	p. 355
The Defendant's Right to Self-Representation	p. 357
Ineffective Assistance of Counsel	p. 358
Sixth Amendment Restrictions on the Conduct of the Police	p. 359
Pretrial Identification Procedures	p. 362
Fourth Amendment Requirements for Pretrial Identification	p. 364
Due Process Requirements for Pretrial Identification Procedures	p. 365
Right to Counsel During Pretrial Identification Procedures	p. 369
Summary and Practical Suggestions	p. 371
Trial and Punishment	p. 373
Section
Overview of Constitutional Safeguards During the Trial and Punishment Phases of a Criminal Case	p. 375
The Fifth Amendment Double Jeopardy Prohibition	p. 376
Prohibition of Multiple Prosecutions for the Same Offense	p. 378
Prohibition of Multiple Punishments for the Same Offense	p. 383
Sixth Amendment and Due Process Requirements for Fair Trials	p. 385
Speedy Trial	p. 385
Public Trial	p. 390
Confrontation of Adverse Witnesses	p. 391
Fair and Impartial Tribunal	p. 392
Pretrial Publicity	p. 394
Trial by Jury	p. 401
Preservation and Disclosure of Evidence Favorable to the Defense	p. 408
Eighth Amendment Requirements for Punishment	p. 413
Constitutionally Acceptable Punishments	p. 414
The Death Penalty	p. 415
Requirements for the Treatment of Prisoners	p. 421
Summary and Practical Suggestions	p. 424
Federal Criminal and Civil Remedies for Unconstitutional Conduct	p. 427
Section
Introduction	p. 429
Civil Liability for Unconstitutional Conduct (42 U.S.C. 1983)	p. 429
Influence of Common Law Tort Principles	p. 431
Qualified Immunity	p. 433
Other Grounds for Pretrial Dismissal	p. 436
Elements of a 1983 Claim	p. 438
"Under Color of State Law"	p. 438
Deprivation of Constitutional Rights	p. 441
Mental State	p. 441
Liability of Municipalities, Supervisory Personnel, and State Governments	p. 442
Liability of Federal Law Enforcement Personnel	p. 446
Liability of Private Individuals	p. 446
Criminal Responsibility for Unconstitutional Conduct (18 U.S.C. 242)	p. 448
Rights Protected by the Fourteenth Amendment	p. 452
Substantive Due Process	p. 452
Fourteenth Amendment Right to Equal Protection	p. 455
Summary	p. 458
Constitutional and Civil Rights in the Government Workplace	p. 461
Section
Introduction	p. 463
First Amendment Protection in the Police Workplace	p. 464
Fourth Amendment Protection in the Police Workplace	p. 472
Fifth Amendment Privilege Against Self-Incrimination During Internal Investigations	p. 477
Fourteenth Amendment Protection for a Police Officer's Personal Liberty	p. 478
Procedural Due Process in Police Disciplinary Actions	p. 483
Employment Discrimination Based on Race, Color, Religion, Gender, or National Origin	p. 487
Equal Protection in the Police Workplace	p. 493
Summary	p. 495
Judicial Decisions	p. 499
Table of Cases for Part II	p. 501
Appendix	p. 731
Text of the United States Constitution, including the Bill of Rights and all effective amendments	p. 733
Glossary	p. 751
Table of Cases	p. 761
Index	p. 795
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