Courts – Assignment Writing – Flashcards

• Trial by jury-fundamental right considered by colonists aka petit juries questions of fact developed after struggle with centralized power in britain, formalized after magna carta

• Jury-article 3 section 2 guarantees the right, 6th amendment criminal cases, 7th amendment jurys in any case, civil cases(trial by jury is mentioned), common law above 20 dollars protect citizens against arbitrary government actions

6-12 jurors,vary per state, most are 12 but can be less

• Jury selection-1). Master jury list that is compiled (compiled by clerk in each court, get cross section of county or community, taken from voters registration and drivers license) • 2). Jury pool aka venire (jury pool, jury room full of people taken from master list, mix names up and divide them among the courts that need people for jury, and send you out to be selected, put on a panel) • 3). Voire dire-means to speak the truth, this is jury selection, questioning, each side gets opportunity to question potential jurors, each side allowed to eliminate potential jurors and challenge them, judge is deciding factor to wether juror is dismissed or not (criminal case, prosecutor goes first, has the burden of proof), first give brief description of case, lawyers create a list of jurors name, number and possibly history/preferences

Cause, unlimited, harder to get, have to establish juror has deep seated bias and cannot be fair,

1). Peremptory challenge, each side gets certain number of (district court, 12 jurors, each side gets 6) can use for any reason at all, don't have to explain it,

• batson v Kentucky-1986-burglary case, prosecutor (only 4 blk mensitting on panel being questioned) used 4 of 6 preemptory challenges to strike them (fairness, equal protection 14th amendment), for defendant-denies him protection trial by jury is supposed to give him (not a trial by peers), prosecuotor was striking by race, blk jurors striked were treated differently denied the opportunity to sit on a jury, -----CANT USE PREEMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY WAY Challenge to strike (batson challenge), other side calls foul to strike 2). Burden shifts to person who made the strike, must give a race neutral explanation for why they striked that person 3). Pre-tex, other side has chance to show that the explanation was bullcrap, (challenge is made, burden shifts to the person striking and must give explanation, then other side can refute that)-judge decides

• After seated the jury is sworn in and have to take an oath, oath (decide the case based on the evidence, wont talk to anybody, each other about the case until over) • Make opening statement-tells jury what you believe the evidence will show (prosecutor goes first, burden of proof-job to prove to a certain level, burden required to prove the case (criminal case-beyond a reasonable doubt) • Preponderance of the evidence-civil case (means more likely than not), aka-51% or more • 1 jury selection, 2 opening statements, 3. Present case 4). Rebuttal 5). Closing arguments 6). Judge reads charge to jruy (jury instructions, instructed this is the meaning of a word, and questions to what you believe) 7). Jury deliberation • present case-(plaintiff or prosecutor goes first) put on evidence, (ex.billng records, witnesses, nurses, documents, doctors that were there)

(prosecutor goes first, burden of proof-job to prove to a certain level, burden required to prove the case (criminal case-beyond a reasonable doubt) • Preponderance of the evidence-civil case (means more likely than not), aka-51% or more

• circumstancial-indirect-I didn't see it for myself but I know its true proof of fact without need of other facts • direct-not disputed, ex. Tax return says made 30k a year, a fact directly witnessed by someone both are equally reliable

• expert witness-can testify beyond personal knowledge, posess special knowledge or expertise in their area, allowed to testify about facts and conclusions drawn from those facts, can give opinion, opinion must be reliable and relevant

• Daubert-case, about experts, courts held in order to testify, expert witness opinion must be reliable and relevant, // and have scientific basis • to challenge an expert witness-call daubert,

appellate courts strive to achieve uniformity in the law-use of precedent, Want a written opinion that is binding on all courts in that jurisdiction Purpose of the opinion is Trying to achieve uniformity in the law by issuing opinions, making precedent

make sure law was correctly interpreted and applied, whether jduge sustains or denies an objection

shape the law, fill in gaps, clarify old doctrines, new interpretations, overrule old decisions

• limitations on ability to appeal-1). Must be a loser in a case to appeal, 2). Prosecutors cant appeal a not guilty-double jeapordy, 3). Only final judgements (can only appeal when nothing is left), 4). Cant appeal a question of fact (point of the initial trial), 5). Only appeal what is actually raised tat the trial court (only appeal what has been objected to)

• texas-texas supreme court-civil cases, court of criminal appeals-hears criminal cases, intermediate courts-14, us court of appeals-11, us supreme court-9, state supreme court-9 people, • trial couret → intermediate court of appeal → court of last resort (texas supreme court or court of criminal appeals) • us district court → us court of appeal → us suprme court • grnad jury-see if probable cause

1). Lanching the appeal-File a notice of appeal, one responding to appeal is appelee (winner), appellant (loser), loser telling winner appealing 2). preparing amd transmitting record-Request for record-court reporter takes down, tangible evidence, every thing happened at trial court, the court reporter and clerk have the responsibility of organizing the record and transcript and sending it up to the court of appeals, both sides get copy of record and begin to write brief 3). Writing/filing Brief-why your appealing, cite to the record (in the trial court), must see judge had all the evidence and still made wrong decision, use law/precedent to argue, create new precedent, differentiate cause from other case (distinguish facts from your case and another case, precedent), appelee writes responsive brief and writes why the judge made the right decision (APPELLANT HAS BURDEN OF PROOF AND GETS A REPLY BRIEF TO WRITE AT THE END),appellant files brief then appelee replys and finally appellant gets last word 4). Oral Arguments-each side gets 20 minutes to talk to justices on why their side is correct, why they should overturn judges ruling, interactive process, panel of 3 judges they ask questions and you answer them, appellant goes then appelee and finally appellant, 5). Court writes opinion-get together and vote, talk it out and come to decision, its majority vote, one judge is elected/assigned to write the majority opinion, sets out ruling in the case, judge who thinks you should lose can write a DISSENT why the decision is wrong (the opinion that is outvoted), another opinion called CONCURRENCE, 6). Disposing of case-4 parts-A). AFFIRM-affirm a judge saying their opinion will stand, uphold B). Modify-this is what judge did below we don't affirm nor reject decision, C).Reverse and Render- reverse decision of trial court and in favor of appellant, done on big questions of law, decision is made you win and don't have to go back down at all D).reverse and remand-judge was in error and wrong and send it back down in light of our ruling, start all over with the trial-start over with same judge

6). Disposing of case-4 parts-A). AFFIRM-affirm a judge saying their opinion will stand, uphold B). Modify-this is what judge did below we don't affirm nor reject decision, C).Reverse and Render- reverse decision of trial court and in favor of appellant, done on big questions of law, decision is made you win and don't have to go back down at all D).reverse and remand-judge was in error and wrong and send it back down in light of our ruling, start all over with the trial-start over with same judge

1). reversable error-types of error that leads to rendition or finding of improper judgement, affected outcome of whole trial 2). harmless error-something that doesn't really matter, judge may have made mistake but didn't really matter, doesn't affect outcome

a judicial order to someone holding a person incarcerated to bring that person immediately before the court. used as a parellel additional track to traditional appeal. • Habeaus corpus-another line of appeals in criminal case, goes staight to supreme court, challengeing right to be held (states right to hold you)

panel can call all judges in court of appeals-the whole panel of justices si sitting there, ex 5th circuit within circuit 15 judges and rotate in 3 judge panels, headquarters is new Orleans,

• Supreme court only court set up in constitution, congress set up all lower courts, federal judges serve for life article 3 of the constitution , normally seen between states regarding ownership • 1). Original jurisdiction (first place you go) • Original jurisdiction-ambassadors, public ministers and counsels goes stright to supreme court, 1 percent of all cases in suprme court trial courts

• Appellate jurisdiction-99 percent of cases, working up the chain to supreme court, suprme court is under regulations by the congress to tell them the type of appellate jurisdiction they have suprmee court defined by congress-judicial act of 1925 discretionary jurisdiction

• Doctrines of access-requirements to get a case into the federal court system- 1). Justiciability-cannot be hypothetical cases, a real case in controversy, ex). Iran and iraq are at war and were considering entering, want court to tell whether its constitutional for us to enter and on what side (haven't entered yet), 2). Standing-means who are you to complaina bout this, have to have a right to bring a lawsuit, (must be directly involved in the dispute)-means you've got something to lose, 3). Ripeness and mootness-means is the case ripe, time to bring the case, is it premature ex). Congres passes a law about medicinal marijuana that's vague, file suit that the law is vague, if law hasn't been applied yet but is going to be enacted you cant sue before it happens & Mootness-waited too long, too late through the passage of time or change in circumstances, no point in this dispute, ex). Student is denied access to lawschool, based on discrimination files lawsuit, school finally gives in and allows him in so he cant continue, 4). Political question-courts will not hear a purely political question, justices think is this the kind of question a court should be deciding ex). International fairs regarding a treaty, issue for president or congress,

• Start at district/trial court then court of appeals, file a writ of certiorari ( means we are asking supreme court to hear a case) and can either grant or deny it cases mainly come to supreme court under this

chief litigator for the executive branch, anytime executive is involved in a lawsuit solicitor general does the arguing, headquartered in washington, similar to small law firm, only one client the executive branch, argues every case in front of supreme court, advise the supreme court, legal problems, setting docket

10k writ of certiorari every year, of those they hear about 70 every year, split cases among the justices, clerks will prepare memo and summarize memo and circulate it to everyone and give recommendations as to whether to take the case or not, after which there is a weekly conference, justices meet every week and discuss and vote on which cases to take, when voting it's the rule of 4 (4 justices have to agree on accepting a case before they will take it) protection by only having 4, only going to hear the case, if they deny the case the case isn't wrong or anything they just don't want to hear it, congress gives them the discretion

when voting it's the rule of 4 (4 justices have to agree on accepting a case before they will take it) protection by only having 4, only going to hear the case, if they deny the case the case isn't wrong or anything they just don't want to hear it, congress gives them the discretion

• Justices-9, appointed by pres and confirmed by 2/3rds vote of senate, president has pick sends it to senate judiciary committee, have hearings, after senate judiciary committee makes reccomendation to whole senate and set a time for a vote • When appointing someone to supreme court consider-ideology, past ruling, experience as a judge, all 9 justices have been justices of the court of appeals, likeable nd smart person who has a personality, look at, merit (credentials and ethical behavior), personal and political friendship (firned of president or from their party), policy preferences (sharing presidentes preferences), symbolic representation (geographical background, race ethnicity)

1).Briefing (clerks with justice, prepare the justice for oral argument, lawyers from each side prepare briefs, also amicus curaie) 2). Oral argument (other judges to convice the others to come to their side, asking questions with lawyers, each side gets 25 min) 3). Conference-(no one allowed in room except for justices, only one room, 2-3 days after argument, chief justice presides over conference, chief justice talks about the case, his views and how he would vote, goes in order of seniority, 4). Opinion assignment-if chief justice is in majority he will assign opinion or write it himself, if in minority next senior justice in majority will assign opinion 5). Writing opinion-finding support for their side through precedents, do research as to why their side makes sense, law clerks drafts opinion and give it to justice, edit and revise it, circulate it to other justices, each justice has to make a decision 6). announcement of opinion (1). Either join opinion and agree with holding and reasoning called joining in the opinion, 2). Concurrence, agree with ultimate decision but have a different reasoning, most senior justice who concur can write own opinion (any justice can write an opinion) can have unlimited concurrence opinions, that is then circulated amongst justices, 3). Dissent-don't agree, similar to concurrence, as many dissents as possible, only opinion that has precedent is majority, cite majority opinion

plurality-cant get 5 votes in majority, but ultimate decision to affirm or reverse has enough votes, cant agree at all (4-join, 3- concurrence, 2-dissent)

• originalist-don't need anything to interpret the constitution other than its own words, what did the framers intend at the time

• non originalist-constitution is living and breathing, purposely vague in order to be part of the times,

chief justice roberts, samuel alito, antonin scalia, clarence thomas

ruth bader ginsberg, steven briar, sonia sotomayor, elena kaegan

anthony kennedy

• Amicus curiae-means friend of the court, special intrest groups can write an amicus curiae brief, they don't have standing in the case but they have an opinion and want them to read it, done by legal groups/special intrest groups