McGraw-Hill/Irwin
Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter 4 Case Hypothetical
Prosecutor Alicia Jones was cautiously optimistic that victory was hers. She had just tried the defendant Donovan Howell, Jr. for first-degree murder of Donovan Howell, Sr., a wealthy construction company owner from Charleston, South Carolina. Any prosecutor would have been pleased with the evidence Prosecutor Jones had introduced to the Charleston County jury. Although there was no eyewitness to the elder Howell’s murder, there was an abundance of circumstantial evidence, including three (3) witnesses who had observed the younger Howell board the yacht of his father at 1:00 a.m. on Sunday, June 27 (Donovan Howell,
Sr.’s body was found on board his yacht later that same morning), a knife next to the elder Howell’s body with his son’s fingerprints on it, and Donovan Howell, Jr.’s confession to Charleston County police on Friday, July 2. In light of all of the circumstantial evidence against his client, defense attorney Edward York had taken the risk of putting his client on the witness stand. The young Howell responded reasonably well to both direct examination and to Prosecutor Jones’ cross-examination.
After five (5) full days of deliberation, the jury announced to the court that it was hopelessly deadlocked, and could not reach a verdict. After inquiring whether there was any possibility that further jury deliberation would resolve the impasse, and after the foreperson’s response of “Most definitely not, your honor,” Judge Gregory Williams officially declared a mistrial. Prosecutor Jones knew there was no way to predict what a jury would do, and she had tried to condition herself with this reality of trial practice, but she was nevertheless shocked by this jury’s inability to reach a verdict in light of all of the evidence she believed proved Donovan
Howell, Jr.’s guilt beyond reasonable doubt.
After Judge Williams’ declaration of mistrial, Prosecutor Jones immediately polled the jury. She discovered that ten (10) jurors were in favor of the defendant’s conviction, with the remaining two (2) jurors opposed to conviction. Those two (2) jurors, Amanda
Yates and Carla Yoder, explained why they voted against conviction. Ms. Yates, a twenty-eight year-old unmarried waitress with a three-year-old son, explained to Prosecutor Jones that there was no way Donovan Howell, Jr. could have committed murder.
Said Ms. Yates, “He just seems like such a polite and well-mannered young man…There is just no way he killed his father.” Ms.
Yoder, a sixty-eight-year-old retiree, had different reasons for her belief that defendant Howell was innocent. Ms. Yoder stated
“Just because he was on his father’s boat doesn’t mean he killed his father. I believe the young man was framed. I believe the knife was planted on the boat, and I believe the police coerced his confession.”
Prosecutor Jones is considering retrying Donovan Howell, Jr. Would the Fifth Amendment “double jeopardy” provision of the
United States Constitution prohibit a retrial of Donovan Howell, Jr. for the first-degree murder of his father?
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Chapter 4 Case Hypothetical
The annual Smallville Fair is the community event of the year. Attendance is always high, with community members going to enjoy the thrill rides, the exhibits, and the food, as well as to “see and be seen.” Principal
Cuthbert of Smallville High School is there, and as he turns the corner (around the “Guess Your Age or
Weight” exhibit,) he is shocked by what he sees. In front of the “Bearded Lady” exhibit is the star Smallville
High School quarterback, senior Coy Gunner. Gunner is wearing a green “tee-shirt” depicting a Christ-like figure smoking a marijuana cigarette; in large yellow letters on the front of the shirt are the words “Joints For
Jesus.” On the back of the shirt (again, in large yellow letters) is the following: “WWJS: What Would Jesus
Smoke?!”
Principal Cuthbert immediately confronts Gunner, exclaiming “Coy Gunner, I cannot believe you would wear such a disgusting shirt. You have offended my Christian principles and beliefs, as well as the religious beliefs of countless numbers of Smallville citizens attending this fair. Further, you have disgraced Smallville High
School. As the star quarterback of our football team, you of all people should know that you are a role model for your fellow students, as well as younger kids in the community. I will see you in my office Monday morning at 7:30 a.m.”
Gunner arrives at Principal Cuthbert’s office on Monday morning to discover that Principle Cuthbert has decided to suspend him for ten school days. Gunner objects, saying “I remember in civics class that Mr.
Campbell told us we have the right to free speech. I object to the suspension, and if you don’t change your mind, Principle Cuthbert, my dad knows a good attorney who might want to speak with you.”
Is the message on Gunner’s shirt constitutionally-protected free speech? Would rational limitations on free speech justify Principle Cuthbert’s decision to suspend Gunner? Does it matter whether the incident occurred on or off school property?
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• Establishes a “federalist” system of government (with authority divided between the federal and state governments)
• Allocates power among the three federal branches of government
(legislative, executive, and judicial)
• Establishes a system of “checks and balances”
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Figure 4-1: The System of Checks and Balances
Legislative Branch (U.S. Congress)
On Executive Branch: On Judicial Branch:
• Can refuse to approve president’s budget
• Can overrule presidential vetoes
• Can refuse to approve presidential appointees
• Can refuse to ratify treaties
• Can impeach and remove president
• Can pass amendments to overrule judicial rulings
• Can impeach judges
• Establishes lower courts and sets number of judges
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Figure 4-1: The System of Checks and Balances
Executive Branch (U.S. President)
On Legislative Branch: On Judicial Branch:
• Can veto laws passed by legislative branch
• Can call special sessions of Congress
• Appoints federal judges
• Can pardon federal offenders
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Exhibit 4-1: The System of Checks and Balances
Judicial Branch (U.S. Federal Court System)
• On Legislative Branch:
• Can declare laws passed by Congress unconstitutional
On Executive Branch:
• Can declare acts of the
Executive Branch unconstitutional
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• Provides that federal law is the
“supreme law” of the United States
• Any state or local law that directly conflicts with federal law is void
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• The primary source of authority for federal regulation of business
• States that the U.S. Congress has the power to “regulate Commerce with foreign
Nations, and among the several States…”
• Simultaneously empowers the federal government and restricts the power of state governments
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Taxing and Spending Powers of the Federal
Government (Article I, Section 8 of the United
States Constitution)
• Provides the power to “lay and collect
Taxes, Duties, Imports and Excises.”
• Taxes imposed by Congress must be uniform across the states
• The federal government can use tax revenues to provide essential services, encourage development of certain industries, discourage development of other industries
• Regulatory impact of tax does not affect its constitutionality
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• Privileges and Immunities Clause
• Full Faith and Credit Clause
• Contract Clause
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• Protects freedom of religion, press, speech, and peaceable assembly
• Ensures that citizens have the right to ask the government to redress grievances
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Finds that in light of the need for a wellregulated militia for security, government cannot infringe on citizens’ right to bear arms
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Provides that government cannot house soldiers in private residences during peacetime, or during war, except for provisions in the law
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• Protects citizens from unreasonable search and seizure
• Ensures that government issues warrants only with “probable cause”
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• Ensures that government does not put citizens on trial except upon indictment by a grand jury
• Gives citizens the right not to testify against themselves (privilege against self-incrimination)
• Prevents government from trying citizens twice for the same crime (double jeopardy)
• Creates the right to due process
• Provides that government cannot take private property for public use without just compensation
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• Provides the right to a speedy public trial with an impartial jury
• Provides the right to know what criminal accusations a citizen faces
• Provides the right to have witnesses both against and for the accused
• Provides the right to an attorney
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States that in common law suits where the monetary value exceeds $20, citizens have the right to a jury trial
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• Provides that government will not set excessive bail
• Prohibits government imposition of excessive fines
• Prohibits cruel and unusual punishment
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Provides that although the Bill of Rights names certain rights, such naming does not remove other rights retained by citizens
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Provides that powers that the U.S.
Constitution does not give to the federal government are reserved to the states
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• Defamation
• Obscenity
• Fighting Words
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U.S. Supreme Court Standard of Obscenity
Established In Miller v. California
• Would the average person, applying contemporary community standards, find that the speech appeals to the prurient interest?
• Does the speech depict/describe sexual conduct in a patently offensive way?
• Does the speech lack serious literary, artistic, political, or scientific value?
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• The Establishment Clause
Provides that government “shall make no law respecting an establishment of religion”
• The Free Exercise Clause
States that government cannot make a law “prohibiting the free exercise” of religion
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U.S Supreme Court Tests For Determining Whether A
Particular Government Statute Violates The
Establishment Clause (As Set Forth In Lemon v.
Kurtzman)
• Does the statute have a secular legislative purpose?
• Does the statute’s principal or primary effect either advance or inhibit religion?
• Does the statute foster an excessive government entanglement with religion?
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States that government cannot deprive a person of life, liberty, or property without due process of law
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• Procedural Due Process—Requires government to use fair procedures when taking life, liberty, or property
• Substantive Due Process—Ensures basic fairness of laws that may deprive life, liberty, or property
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Definition: Constitutional guarantee providing that when government takes private property for public use, it must pay the owner just compensation, or fair market value, for his/her property
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• Prevents states from denying “the equal protection of the laws” to any citizen
• Combats discrimination, since it applies whenever government treats certain individuals differently than other
“similarly-situated” individuals
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Judicial Tests to Determine Violations of the
Fourteenth Amendment
• “Strict Scrutiny” Test: Applies to “suspect classifications” based on race, national origin, and/or citizenship that would prevent individuals from exercising a fundamental right (such classification allowed only if necessary to promote a “compelling state interest”)
• “Intermediate Scrutiny” Test: Applies to classifications based on gender or on the legitimacy of children (such classification allowed only if it is substantially related to an “important government objective”)
• “Rational Basis” Test: Applies to all other matters
(such classification allowed only if it advances a
“legitimate government interest”)
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