- June 6, 2020
Senior Capstone Project
Assignment1. Part A
TheFourth Amendment to the US Constitution ensures that men and womenare free from unreasonable searches and seizure of their propertiesby the US government. The law protects individuals from arbitraryarrest and has become a central topic of discourse in relatedcriminal laws and privacy issues (Kerr, 2012). The Fourth Amendmentstates clearly that the right of American citizens to be secure intheir individual capacity, and their properties against unreasonablesearches and seizures, shall not be despoiled. And no reasons forsearch and seizure shall be granted unless on probable foundation,and place to be searched has been well described, and the citizen`sproperty and things to be searched. The goal and objective of theFourth Amendment are to make sure the American`s right to privacy hasfully been enabled without violation of their freedom from arbitraryarrests and government intrusion (Kerr, 2012). Private intrusionsthat do not act in the capacity of the national government arehowever excluded from the fourth amendment.
Beforeclaiming any protection under the Fourth Amendment, one is expectedto demonstrate expectations of privacy- an expectation of the nationis ready to recognize as reasonable under the prevailing situations.Unless there is a justifiable reason beyond any reasonable doubt,warrantless search for premises is highly prohibited. Also, theprotection fails to cover intrusion and search in cases of openfields, and a warrantless seizure of abandoned property is allowed.One cannot expect privacy in open fields. If one voluntarily acceptsand does not object to search by the government, the Fourth Amendmentcan be waived. More so, if one right is violated by the governmentfollowing warrantless search, the person can file a Bivens actionagainst the federal law enforcers and claim compensation for damagescaused.
Themost critical question with the Fourth Amendment is determining ifunreasonable search and seizure have taken place. Initially, lawdwelled on people`s rights when the federal authority intrudes inthe person s houses, papers, offices and torcher effects for thissole reason of containing information (Kerr, 2012). During the dawnof the 1900s, it was believed that the fourth warrant could not coverother non-physical forms of government intrusion like video- tapingand speech recording of citizens without a warrant. Not until 1967when the supreme courts expounded on the focus of the FourthAmendment and ruled that a governmental intrusion had taken placeafter a taping a telephone booth with a microphone connected toglass. The Kats vs. United States lawsuit saw the court reasoningthat although no physical intrusion had taken place, which after Katzentered the booth and shut down the door, he expressed the desire forprivacy and did not intend the public to hear the content of theconservation. It was not until Potter Stewart stated that theAmendment defends citizens’ rights, and not dwellings or locationsplaces that the change became even clearer. Therefore, the fourthamendment covers, electronic or physical, privacy. This laterfollowed the development of the two tests for government violation ofprivacy rights, and for checking whether the amendment is applicablein a given situation or not (Clancy, 2008). First, the person mustshow the real expectation of privacy, and lastly, the society mustagree that such an expectation is agreeable and logical.
Historyand Scope of the Amendment
Duringthe days of Tudor monarchs between 1485 and 16703 in England, thekings and queens allowed their agents to search and seize privatedocuments without prior notice to the owner (Kerr, 2012). This wasused by the authority to exercise control against resistance andstreamline opposition towards its policies. The crown conferred thevast power of arrest and seizure to help enforce the licensingsystems. In 1557, the Stationers Company was instructed to do thesearch in any way it pleased, in any location within the Kingdom ofEngland. It was given powers to search, seize and hold any book andother print materials published contrary to the form of the statue,and in return would be granted monopoly privileges (Kerr, 2012. TheStationery Company assumed this role of search and seizure for a longtime until the monarch fell in the 1640s. In searching for non-licensed printings, the syndicate, therefore, protected its selfishposition as a monopoly (Kerr, 2012).
Inthe British colonies of America, the colonists opposed the use thesepowers, making them one of their core grievances for the Declarationof Independence. Drafters of the fourth amendment did not base theirpoint of view on political theories but as an expression ofresistance against unreasonable search and seizure that American andEngland had experienced. These abuses took place largely before theAmerican Revolution, and extend for a longer time in England. Thefourth amendment was seen as a tool of war against oppressions, and aone way of ensuring "Aman`s house is his Castle“.The Amendment has two primary sources, one from England and the otherfrom American experiences of oppressive searches and seizure. InEngland, the authority continually expanded its power, and the warfor the freedom of the press was wired to the issue of power search(Kerr, 2012).
Thebill of rights had few of its portions derived directly from the lifeencounters of the colonials as the Fourth Amendment. The desire forfreedom from unreasonable searches and unwarranted seizures grew asfundamental human rights gained more attention. A civil case ofexecution process later came to acknowledge the right of home ownersto defend their properties against unlawful confiscation (Kerr,2012). However, at the time of Semayne`s Case, the authority of theappropriate officers, under the king, to break into one`s housesafter a brief notice was also recognized. The fist known statement offreedom from unwarranted arrest was in The Rights of thecolonialists, in a drafting led by Samuel Adams (Clancy, 2008). Oneof the then most revered expressions relating to freedom of rightsand the right from forceful property seizure was by Cokes, who saidthat the poorest by all means, despite having inadequate housing,should have the right to stop even the King of England from enteringhis/her house.
Inlater years, an associate of Wilke`s sued after government agentsbroke into his home, damaged desks and seized a lot of property(Kerr, 2012). The court then declared the issuance of a warrantbefore intrusion and search. In the colonies, English authorities’agents to enter houses and seize properties without a warrant. Theused writs, which were orders authorizing agents to seize and breakinto any man`s house forcefully. Shortly after the death of George iiin 1760, the authorities were expected to get issuance of new writs. On libertarian grounds, James Otis attacked the publication of thenew writs saying the new measures conflicted with Englishconstitution. Although his arguments were to be later cited incolonies, he lost his bid, and the writs were still issued.
Casesthat involved the Fourth Amendment Protection
Oneof the most recent and equally intriguing cases of search and seizurehappened in October 2009, State of Rhode Island vs. Michael Patino.The cases involved the police officer, Sergeant Michael Kite andMichael Patino, where it was alleged that Kite intruded Patino`srights and freedom guaranteed by the Fourth Amendment rights bylooking at cell phone messages from a cell without a valid reason(Kerr, 2012). At 6:08 AM, Trisha Oliver called law enforcementofficers to her apartment, after her child started looking criticallyill. The fire section quickly took the child to the hospital where heand later died. Less than 20 minutes after the phone call, Sgt.Michael Kite had already arrived at the Cranston place, where hefound Oliver and noted striped beds and vomit in trash (Kerr, 2012).The Sgt. picked up the cellphone and viewed text messages owned byTrisha Oliver. There were other messages with indecent content, andPatino was later apprehended and charged with killing the child. Onhis defense, the Sargent claims that he took the phone because it wasringing. The Island Associate Justice, Judith Savage discarded allthe evidence law enforcers had from that point onwards, even thephone content. The Justice said all the proof obtained wascontaminated by the illegal and unreasonable search and seizure. Thecase of messages remained unsettled in the department of criminalinquiries, and Savage said that the court found it sensible forcitizens of America to want their messages in their phones tocontinue being private. The searches on the phone by Sergeant Kitewere illegal, according to Savage, were unreasonable and a violationof the Fourth Amendment.
Sincepeople keep their cellphones personal all the time, Savage statedthat the text messages are worthy of the Fourth Amendment. However,she also noted that the higher court has failed to give directions tolesser courts, and has also faced challenges due to emergingtechnology, such as cellular phone usage and their contents. In theOntario vs. Quon case that was settled in 2010, the sides involvedrequested a firm decision on whether text messages should be grantedthe Fourth Amendment protection, but the court nevertheless did not,and chose to decide the case on pure reasons.
TheFourth Amendment in the State of Georgia
TheFourth Amendment has its implications in the State of Georgia. TheGeorgia Court of Appeals, on June 2013, maintained the Trial Court`sconcealment of an unlawful search and seizure which produced two gunsfound inside a vehicle of Kentavious Carr. Georgia Court of Appealsupheld Trial Court`s suppression of an illegal search and seizurewhich produced two firearms found inside a car where Kentavious Carrwas a passenger. Complainant Jhakeva Smith had previously called 911to report that her boyfriend had to obligate an act of domesticviolence. The police saw two males inside a blue Impala drivingtowards them, and the police stopped them after. Upon a request toexit the car, the driver fled while Mr. Carr was pulled out by FultonCounty Officer Tracy Marks and-and told he`d be shot if he moved. Gun was later exposed in the pocket of the passenger side door.
Thetwo parties agree that the officers were right in stopping theImpala, and the State tried to argue the legitimacy of the search wasbased on ensuring the safety of Officer Marks. If there is noevidence that Carr was armed, the search could not be justified. TheCourt further held that a seizure ensued after Marks was handcuffed.It is good to note that, if a prosecutor justifies search andseizure, on the merits of safety concerns, it might require thepolice officer to testify. While the law ensures people are freefrom unreasonable search and seizure, it has attracted critic aswell. According to Burren, protection from search is unreasonable insome situations. He states that:
Thetruth has, in the twenty-first century, become infinitely morecomplicated as long-standing practices are manipulated to serve theexpanding desires of the national security state. The mining of wordsand concepts for new, darker meanings is a hallmark of how thingswork in Post-Constitutional America. Over the years, recognizing thatcertain situations could render Fourth Amendment requirementsimpractical or against the public interest, the Supreme Court craftedvarious exceptions to them. One was the "border search."The idea was that the United States should be able to protect itselfby stopping and examining people entering the country. As a result,routine border searches without warrants are constitutionally"reasonable" simply by where they take place. It`s aconcept with a long history, enumerated by the First Congress in 1789(Burren Van, 2014).
Thereare few exceptions to the search and seizure protection provided bythe Fourth Amendment. Law enforcers with sufficient reasons tosuspect illegal activity taking place can search and seize without awarrant. This mainly happens in motorist control points, whereofficers find the need to search drivers for their consistency infollowing the law. Reasons for search may include the cars occupantbeing subject to seizure for law breaking, unregistered automobile orbeing unlicensed (Burren Van, 2014). In certain cases, especiallywhen the safety of the United States is greater than anything else,the Fourth Amendment Act may not protect individuals. The SupremeCourt can allow officers in immigration borders to search and seizeboth foreigner and citizens without a warrant. The general procedurefor a legal search and seizure is the acquisition of a search warrantby the enforcing officer. The warrant is a written permission fromthe court and qualified magistrates to legally search, and seizeevidence when doing a criminal investigation. Searches and seizureswill not be considered illegal in case one the reasons mentionedabove is in play, such as immigration checkpoint situations. If thewarrant does not amount to search and seizure, the search must bejustified by the law enforcer using sufficient reasons for thesuspect of criminal activities"(Burren Van, 2014).
TheFourth Amendment protection ensures the American Citizens are safeand secure, and their properties – houses, cars, lands, papers, andeffects, are free from tenacious intrusion of privacy, and will notbe dishonored. Legitimate translation of the fourth amendment of theconstitution today stands out amongst the clearest element of theconstitution. Similarly, as a "living" document, the makingany further amendment would not connect with new constitutionalprerequisites. We cannot verify whether or not the drafters of theamendment, or articles in the late eighteenth century, predicted howsecurity against "searches and seizures" might have had achance to be linked with pre-trial privacy violations even though aperson could have been charged with the use of illegal drugs. Thepresent facts show that fourth amendments, with respect to the law ofsearch, could warrant the police department to legally search one’shouse if he is found to be a suspect. These selections attempt toalter the correct blue diversions of theory use in resistance of thegreat longings about security from claiming character locals. Doneexecuting or neglecting this mindful change, every the preeminentcourt judges will be slanted today on provision for up to severalparts of certification in the yearning about extending openinsurance. In settling for a choice, a few might express that wewould neglecting our country`s history, same time others might battlethat we are securing our finish future. There may be staggering openincessant contention today around action. Others view restrictingpolice chases as protecting Perfect subjects from cowl questionablematter and passing of the ponder affiliation of quality. Thosestrolling with review for fourth revision instance regulationprogresses two or three checks through which security need beenproduced, denied, or surrendered, and the social setting on whichthese tests have been related.
TheFourth Amendment stipulates that the right of American citizens to besecure in their individual capacity, and their properties againstunreasonable searches and seizures, shall not be despoiled. TheAmendment ensures that no reasons are granted for search and seizureshall be unless on probable foundation, and place to be searched hasbeen well defined. The aims of the Fourth Amendment are to make surethe American`s right to privacy has fully been enabled withoutviolation of their freedom from arbitrary arrests and governmentintrusion (Burren Van, 2014). Private intrusions that do not act inthe capacity of the national government are however excluded from thefourth amendment. Only when there is a justifiable reason beyond anyreasonable doubt, warrantless search for premises is highlyprohibited. Additionally, the protection fails to cover intrusion andsearch in cases of open fields, and a warrantless seizure ofabandoned property is allowed. One cannot expect privacy in openfields. If one voluntarily accepts and does not object to search bythe government, the Fourth Amendment can be waived.
Assignment1. Part B
Admissibilityof the cameo
Inthe case, the cameo is admissible in court and the proceedings. Thecameo becomes material evidence in the criminal proceedings of theReynold brothers. It becomes admissible if Mrs. Jackson identifiesit to be the stolen cameo in her home. The probative value of thecameo depends on its ownership which is established to be Mrs.Jackson family. It is clear that the cameo is material evidence,primary on the case and could provide the jury with a boundless factregarding the robbery and the case. Unless the Reynold brothers areable to prove otherwise, the cameo remains admissible in a court oflaw. The burden of proof lies to the Reynold brothers to belong tothem and is not stolen and in this case it is difficult for them toestablish that. The cameo has evidential value due to what itdemonstrates to the case. The evidence was obtained due to a probablecause that detective Walters and the police department had. There wasno need of the warrant since the situation was an exception due tohistory of the crimes the Reynold brothers had.
Admissibilityof the guns
Theguns therefore under the fourth amendment qualify to be admissible inthe criminal proceeding. The results of the forensic research on thefingerprints of the gun should be conclusive with fingerprints of theReynold brothers for the admissibility to be positive. Nonetheless,the guns are found in the home of the Reynold brothers and aretreated as their possessions which make them admissible in courtproceedings. The criminal profiling that had been done by detectiveWalters asserts that the modus operandi of the Reynold brothersincludes the use of the guns which were found in their house.Therefore, admissibility of the guns relies on the police statementand on the forensic results of the fingerprints of the guns. Thepolice department ought to have provided circumstantial evidencesupporting the guns due to the behavior of the Reynold brothers. Theguns will be admissible if the prosecution is able to prove anexistence of the mensrea.
Thereis a misconception which is popular that circumstantial evidence canbe less valid or even less important as compared to direct evidence.This is considered to be partly true. Most of the successful criminalprosecutions that have taken place continue to rely largely andentirely on the use of circumstantial evidence. The, a civil chargeshave been frequently based on involvement of circumstantial. Most ofthe evidence that was used against the Timothy McVeigh, convictedAmerican bomber, was circumstantial. In the proceedings,circumstantial evidence is viewed to have an advantage in relation todirect evidence. Circumstance evidence can be obtained from multiplesources which will be able to reinforce and check each other. In thecase of eye witnesses, there may be some inaccuracy involved at thetime of the crime. States have convicted many people on the basis ofmistaken testimony which were not supported by circumstantialevidence. The strong evidence, which is circumstantial has aprobative value and can be used as a basis to make a verdict incriminal proceedings. The gun of Peter Reynold is admissible since heused it in the attack of Mr. Jackson and the forensic result shouldbe able to indicate so on the basis of DNA. In short, both the gunsare admissible in the docket of robbery with violence.
Admissibilityof line-up evidence
Theline up evidence is admissible in court. Mrs. Jackson identifiedSteve Reynold as a positive match as she remembers his face andphysicality. Pretrial and line ups identification are vital pieces ofevidence in criminal proceedings and it is imperative to ensure anunderstanding of their admissibility in a proceeding. A line up willonly be objected during trial during a suppression earing (Kerr,2012).The lineup are considered inadmissible if the attorney of t accusedis not present at the time they are conducted or even when theprocedure followed is unnecessary suggestive. The identification isclassified in two categories of trial and pretrial. Trialidentification is treated differently than the pretrial. The line upwithout supportive evidence to line the individual to the crimes canbe considered inadmissible in court. The line up in this case assupportive evidence on Steve and will be considered admissible to theproceedings.
Admissibilityof Mrs. Lindsay Testimony
Mrs.Lindsay testimony I admissible in the proceedings as it place theReynold brothers at the scene of the crime. A positive identificationof the accused is an important element of the offence. In this case,Mrs. Lindsay identifies the car that belonged to the Reynoldbrother’s father who is incapacitated by old age to drive. Shenotices positively the Reynold brothers in the car before they committhe crime. The testimony becomes an important part of the criminalproceedings. This is mostly the significant of the evidence due tothe linkage it introduces to show that the Reynold brothers areguilty of their crime. The courts have also been able to acknowledgefrailties involved on the eyewitness identification of the offendersand the have been opinions and legal body decisions that have come upover the years. Misidentification by an eye witness on the other handserves to be the foundation and the basis through which miscarriagesof justice is performed.
Admissibilityunder federal and state laws
Thebenchmark on deciding on the rule of admissibility is relevance ofevidence. In part, the Federal rule of evidence (cap. 402) indicatesthat “All relevant Evidence is admissible, except as otherwiseprovided.” The main aim of the rule is the allowance of bothparties in a proceeding to able to provide evidence that bears valueon the decisive approach of the case and thus keeping out evidencewith lack of probative value. Decisions made on admissibility ofevidence rely on the probative value and the ability of the evidenceto amount to large involvement in a criminal proceeding.
Inany given court proceeding, the evidence produced by both theplaintiff and the defendant stands out as a precursor to the wholetrial. The evidence produced is deemed admissible if the trial judgeor the jury determines that it is not subjected to being biased andmeets the levels of relevancy. The evidence should also be able towithstand the rules of hearsay together with other objections.Admissibility of evidence in court is also determined by theprobative value. Evidence is given in the basic forms ofdemonstrative evidence, real evidence, documentary evidence andtestimonial evidence. There are rules that also guide on theadmissibility and inadmissibility of evidenced in a criminalproceeding in courts. The rule of evidence is established to governthe facts or the proofs in court proceedings. The concern is alsogiven to the quality and quantum of evidence in the determination ofadmissibility although the rules vary according to the jurisdictionsthe evidence is provided art.
Assignment1. Part C
TheFourth Amendment that was done to the United States constitutionclearly prohibits unwarranted seizures and searches. The seizures andsearches are to be conducted with a warrant issuance that is guidedby a probable cause. The warrant is therefore supported byaffirmation and clearly indicates the person to be searched in thatoccasion and the items to be seized. The warrant constitutes the billof rights demands and has been adopted in America due to increasedabuse by law enforcers on Writ of Assistance which created tensionsin the pre-period of the revolutionary America. The amendment putthe issue of seizures, arrest, and searches to a limited scope thatrelied on the information that was supplied to the issuing court. Itentails the forthright consequences that arise due to the violationof the rights of the victims and accused.
Theevidence rules in United States are historically established by thecases that have happened rather than official or organizedcodification. In the past, legal scholars vehemently fought for theintroduction of uniformity conjoined by predictability when it cameto the issue of evidence admissibility. The American law institutebegan a campaign that saw a drafting of the rules of evidence in1942. The pressure mounted on and in 1953, the National Congress ofCommissioners was able to draft the evidence uniform rules. In 1975,the Congress by ten adopted the draft on the Federal Rules ofevidence. The rules are used in official capacity up to today infederal courts. Some of the states have also codified the rules witthe basis laid on the federal rules of treating evidence. The rulesguide the trier of facts on the general acceptance or rejection ofevidence material produced in a proceeding.
Thesearch and seizures are performed with respect to issuance of awarrant although there may be circumstances with which the warrantmay not play a bigger role. Although it may be considered unethicalthe searches and seizures without a warrant cannot be said to beunreasonable when there is a probable cause. The situation willrequire well delineated and established exceptions of a warrant need. The exceptions are deemed to exceed and call special needs that donot require normal needs of the obtaining of a warrant to conductseizures and searches. In the situation, the seizure and the searcheshave to be justified by individual suspicions to wrong doing. Theconstitution indicates that the exceptions need to show that theprivacy interest of the individuals is not unconstitutionallyviolated by the seizure and searches. An important federal governmentinterest should precede the warrant requirement for the intrusion tohappen.
Inthe case of a probable cause, a warrant may not be needed. Standardsrequired by a probable cause are in a way differing with searches andarrests. The requirement is that a probable cause has to exist beforethe seizure and searches. The law enforcers have a probable cause toarrest individual if the circumstances and the facts that areavailable to them and within their knowledge and with which atrustworthy source of information is considered. The knowledge andinformation should be able to indicate that the person under searchor arrest has committed crime.
Inthe event of conducting a search by the police, the amendmentdictates that the uncovered evidence should be clear on the criminalactivity suspected or should be able to indicate contraband. Thereasons should be sufficient legally to conduct an intrusion. In thecase of Caroll vs. United States (1925) the Supreme Court indicatedthat probable cause was the main cause of the unwarranted search. Inthe ruling of the case of Dumbra v. United States, the courttherefore indicated that the meaning of probable cause has thesuggestion of ‘less evidence that justifies the condemnation.”The probable outcome should put the evidence seized to beincriminating for the search to be productive without a warrant.
Assignment2. Part A
Theclassical rebels in America had the recognition that the rights of anindividual were only allowed up to a point where their privacy meantan intrusion of others or their liberties. The fourth amendment isnot meant to serve protection to the government on the abuse of theprovisions stipulated by the bill of rights. The rights to searchesand seizures should be able to be cabined on the historicaldevelopment that already gave birth to it. There exist competinginterest in ensuring the society and individuals are protected by thelaw. At the same time, the government has a role to play in ensuringit doesn’t cross boundaries when it comes to individual humanrights. There exist a competing inters in ensuring that liberties andsecurity of the___14 society are traded of equally and one cannotviolate the other.
Thefourth amendment prohibits unwarranted searches and seizures by thegovernment. The exclusionary rule that is involved also invokesprohibition of the state and the federal government in using theevidence that is acquired through the violation of the amendment. Theinjured parties that are involved due to the violation of theamendment have been given powers to bring action to the government onthe damages they face. The forum on seizures and searches has broughtup the debate on the public forum on what the amendment is supposedto protect.
Thefourth amendment has played an important role throughout the yearsand has already been brought to question by the advancement intechnologist technology brings into debate the issue of invasion ofprivacy in relation to searches and seizures. The Olmstead v. UnitedStates case saw the intrusion of privacy through tapping of atelephone conversation. The court allowed the admissibility citingthat there was no search and seizure involved as the eavesdroppingpractice by the police department did not amount to trespassing. Fouryears later, the case of Katz v. United States, the Supreme Courtdecided to change its decision on the tapping of telephonecommunication. The court asserted that the tapping was unlawfullydone and amounted to invasion of privacy. The court thereforedescribed that the phase in the fourth amendment “constitutionallyprotected area” could not be asserted to the general right toprivacy. It was asserted that what one seeks to be private even inthe public areas is protected by the constitution.
Muchweight is given on the protection of the society. It is clear thatthe government has the constitutional right of maintaining security,law and order in the society and the opposite cannot be allowed tohappen when protecting an individual due to privacy issues andconcerns. Although there needs to be probable cause for the searchand seizure to happened, the right of the society precedes the rightsof an individual at that moment. Protection of the society becomesparamount and the government will not have to justify its intrusionto the constitutionally protected area. The use of technologies bylaw enforcers on people homes like thermal imaging constitutes to asearch as indicated in the Kyllo v. United States. The search needsto be warranted and includes a violation of the fourth amendmentunless a probable cause Clause is used. The courts new stand on theprotection of individuals is seen to be spread over to theconservative liberals.
Inthe event of suspicion of foreign threats, the court allows thewarrantless searches with the main objective being to protect therights of the society. The searches and seizures are not in any wayperformed to obtain evidence that can be used in prosecution, butrather securing information for the government that will be used indifferent context. Giving the federal government authority tounwarranted searches should therefore constitute a modification tothe exclusionary rule to offer a limitation to which the governmentis supposed to go in searches and seizures. There is need to sort outthe competing interests on the constitutionally protected values thatinvolve the law enforcement unit, intelligence unit, the societyrights and individual rights to privacy.
Draftingthe penal code
Inthe section of the penal code
1.’Adequatecause’ has the meaning of a cause that can commonly be able toproduce a degree of rage, temper, anger, resentment, and terror thatis good enough to make the mind be incapable of its own coolreflection
2.’Suddenpassion’ has the meaning of passion that is directly arising orcaused by the provocation o the killed individual at the time of themurder
Aperson is known to commit an offence when:
(a) He/sheknowingly or intentionally brings about or has the primary cause ofdeath to an individual
(b) He/shehas the intentions of causing bodily harm or injury to an individualand the act should be classified by the court to be dangerous tohuman life and can cause death
3.aperson attempts or has committed a felony, and in the attempt orcommission , other than murder or manslaughter, he/she commits an actthat is considered dangerous to human life and that results to deathof another person or individual.
(c)With an exception provide by (d), the offence under the section istaken to be the first degree felony
(d)During the trial stage, the defendant is given a chance to issues onthe death under the influence of sudden and immediate passion thathas arisen from adequate cause. When the defendant is able to provethe issue, beyond reasonable doubt, in the affirmative by usingevidence, the offense he/she committed becomes second degree felony.
Aperson is known to commit an offence as stipulated by section 1A and:
1. e/shemurders a peace officer
2. he/shein tea attempt or commission of burglary, kidnapping, sexual assault,arson, retaliation, terrorism or robbery commits murder
3. he/shecommits murder or manslaughter for remuneration or employs or hiresanother individual to commit murder with a promise for remuneration
4. he/shehappens to commit murder in escaping a penal institution
5. he/shemurders another individual in incarceration
6. he/shemurders a person of less than ten years of age
Theapplicability of the penal code does not apply to death involvingunborn child when:
(a) Theconduct is committed by the mother
(b) Theconduct involves a medical procedure supported by law and practicedby a licensed physician
(c) Theconsent of assisted reproduction defined by the family code resultsto death
2.(a)All murder that is conducted or committed using destructivedevices, explosives, weapons of mass destructions, intentions to bodyharm knowingly, torture, assassination, kidnapping, train wrecking,premeditated, arson, carjacking, rape, burglary, robbery, intentionsto inflict death using tools and machinery should be and isconsidered to be murder in the first degree.
(b)Thefirst degree murder carries the life imprisonment of death by lethalinjection
(c)All other murders are hereby considered to be second degree murders.
(a) (1)Robbery can be described to be feloniously taking personal propertiesbelonging to another individual from his/her immediate presenceagainst their own will by using force or instilling fear
(2)Theconduct in the course of committing theft or in an attempt, duringthe conduct of theft or commission of theft
(3)Propertyis the intangible or intangible individual property including land,or documents that include money and which presents anything orsomething of value
(b) Robberytakes place when:
(1) Anindividual breaks into a house when the residents are present andinstils fear by threating physical harm on them before stealing theirpersonal belongings
(2) Anindividual drugs another person in order to steal their possession intheir unconscious state, and
(3) Anindividual is caught in the act of stealing and threatens thepossessive owner of the property being stolen with physical harm witha view of escaping
(c) Robberyhas the consideration to be first degree if
(1) Therobbery involves any passenger or driver on a streetcar, taxi,subway, bus or cable car
(2) Therobbery of any person in the vicinity of an ATM machine
(3) Ifthe robbery is deemed to take place in a structure that is inhabited
(d) Thefirst degree robbery have a sentence of between 5 to 20 years in astate prison
(e) Thesentence for the second degree robbery is 2 or 3 or 4 years.
(a) An individual commits an offence when they:
(1)Recklessly, knowingly or intentionally commit the act that causesbodily harm to a spouse or another individual,
(2)Knowingly and intentionally commit or attempt to threaten anindividual with bodily harm including their spouses
(3)Knowingly or intentionally conduct an action that causes personalcontact to another individual who considers the contact to beoffensive to them or even provocative
(b) the offence classified under Subsection (a)(1) is considered to be aClass A misdemeanor, with the exception given the offence to be afelony in third degree state f the offence is conducted against:
(1) An individual who is a public servant in their line of duty or inthe response to an account of official duty or powers
(2) An individual whose association or relationship with the defendantis explained by the family code
Misdemeanorsand felonies are classifications of crimes which have continued to beused in most of the states with a third classification being calledpetty offenses. The petty offenses are punished by use fines and haveno jail time. Misdemeanors are punished with the use of jail time andsometimes a substantial amount of fine is involved. The jail term isless than a year and is served in a local jail or a correctionalfacility. The jury trials are available and usually depend on thetype of misdemeanor. On the other hand, felonies are a serious typeof crime and they are classified by use of degrees. The first degreefelony is the most serious and attracts heavy punishment. The courtis mandated by the law to provide an attorney to the defendants whodon’t have the capacity to afford one. The defendant has the rightsto a speedy trial and the prosecutor is required by law to get anindictment from the jury. Felonies are punishable by jail timeexceeding one years or substantial fines. In some of the states, whenone is convicted of a felony, they may lose the right to possess afirearm and may not get employed in various sectors.
Assignment2. Part B
Thevalues of the criminal justice system are its guiding factors. Thepeople who work on these institutions are expected to uphold thesevalues every time. Public safety and fairness are some of the guidingvalues that are explored when charging an individual so as to reducethe cases of disparity in sentencing. The judicial system is expectedto have a sense of fairness such that there is no profiling ofindividuals based on race, and this is necessary for the developmentand maintenance of a democratic society.
Basedon the arguments of Wacquant, the penal scheme was established in thepast to control, marginalize and exploit Americans with Africanorigin. Wacquant claims that the Jim Craw Law is an example of thehistorical injustices that accompanies the sentencing through thesystem (Kerr, 2012). The suburbanization as well as transfer ofAmerican jobs is intended to render individuals with African origin asuperfluous to the economy of America. The author remarks that thejudicial system has substituted the locations occupied by the blacksto prisons so as to control this society (Kerr, 2012). The prisons donot perform their main function which is to rehabilitate individuals,and the issue of disparity in sentencing dominates.
Disparitiesbased on race is well illuminated in the system since a big portionof the population in jails is made up of individuals of the minorblack race. The racial disparity has also led to un-uniform treatmentof persons who are sentenced for similar reasons (Johnson,2010).Even though there has been a lot of changes in the leadership of theUS, as well as intensified attention given to discrimination based onrace, there are still certain quarters that have remained unchanged.On reviewing the records of arrests, it is clear that there is a lotof racial profiling that presents a lot of unnecessary information tothe judiciary. The system is expected to give fair treatment to allcriminals. In the past, there was some level of disparity in howblacks and whites were treated, however, with time, the situation haschanged (Kerr, 2012). The discrimination, today, presents itself indifferent factors as well as processes. The result of this is manyresults hence becoming a clandestine process.
Thejudiciary system us among the institutions that the society could useto address various unwanted behaviors in the society (Johnson,2010).The system influences community by not only empowering it but by alsogiving guidance on ways of operating. When serious offenses are done,the courts usually put away juveniles for a predetermined period oftime as a form of punishment. Such rulings may be grave and it isalways important to ensure that they are within the constitution(Johnson,2010).The court requires enough resources so as to use and provide caseprosecutors. Convictions are required so that there can beadmissibility of any case. The community should exploit and invest oneffective programs so as have an effective youth ordinance.
Theappropriate punishment for any offense must be used to correct anyunwanted behaviors of the youth in the society. Maintaining law andorder, and protecting the youth is a very controversial and emotionalactivity. As such, certain rulings are often not welcomed as someindividuals may feel that the rulings are either too harsh for theoffenders. The judiciary is required to hold a neutral ground at alltimes when making rulings on all cases, since there is always a lotof attention and interest by the media and the political class. Thedaunting task regards rulings on delinquency cases (Johnson,2010). However, when young offenders commit crimes or violate the law,their cases are brought tabled in court under the rule of law. Suchcases involve minor offenses like theft, burglary and assault amongothers.
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