It applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment (Mapp v. Ohio, 1961). If evidence falls within the scope of the exclusionary rule led law enforcement to other evidence, which they would not otherwise have located, then the exclusionary rule applies to the related evidence found subsequent to the excluded evidence as well. Such subsequent evidence has taken on the name of “fruit of the poisonous tree” (Silverthorne Lumber Co. v. United States, 1920). The Exclusionary Rule is a court-created remedy and deterrent, not an independent constitutional right. Courts will not apply the rule to exclude illegally gathered evidence where the costs of exclusion outweigh its deterrent or remedial benefits.
For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is. This law also derives its basis from these court proceedings called precedents to guide cases based on past rulings. The one disadvantage of common law is how cases will surmise. As Rogers (2012) attests, “even the best judicial minds often disagree, based at least in part on their judicial philosophy and political ideology” (Section 1.1). Depending on each of the judge’s beliefs, cases can go in any direction from their analysis.
It seems to me that statutes can be either struck down after interpretation or continue to be enforced. If someone challenges the statute, it could travel all the way to the Supreme Court to be interpreted. The Supreme Court can provide a decision whether that statute is being applied in a constitutional manner. In the passage we read, the state tried Johnson with a statute that eventually was struck down because it was inconsistent with the translation of the First Amendment. So, statutes can be amended or changed if not acceptable.
Two types of Stare Decisis have been identified: horizontal stare decisis and vertical Stare Decisis. Horizontal Stare Decisis binds the issuing court to its own prior decisions. Vertical Stare Decisis requires that courts of lower rank follow decisions of higher courts. Vertical Stare Decisis has a stronger effect, in that lower courts generally cannot overrule decisions of higher courts, whereas a court may, given adequate reasons to do so, overrule itself. DICUSSION When a
- The court must decide if the advertisement constituted an offer, and if the mistake is genuine and can be grounds to avoid the contract due to a unilateral mistake of fact. What is the court’s reasoning? (Might include reliance on precedent, statutory interpretation and legislative history & societal considerations) - The court first looked at whether an advertisement can be considered an offer. The court differentiates between advertisements that are in fact invitations for individuals to negotiate an offer, and advertisements that ask for a specific action without further communication and leave nothing for negotiation. The first category of advertisements is not considered offers, while the latter is not.
Common law differs because it’s a law that is created by judges is based on past court decisions. If statutory law conflicts with common law, statutory law will govern. Common law has not been made into a statute, in which case it would be a statutory law. 1-8 The judge's role is not to make the law but to uphold and apply the law. Do you agree or disagree with this statement?
According to Fish, it is the Supreme Court’s job to correct any wrong that was done in the past. Mistakes that are just now recognized can sometimes be fixed by changing the law. Fish says that it is not his place to answer the question of whether or not an apology should be given; he is simply stating that their reasons for resisting are not reasonable. If apology continues to be a reparation to fix all of the mistakes that the courts have made, it will be “nothing more than a ‘feel good’ gesture” (469). Apology will eventually lose its sincerity and be almost ceremonial like.
An example is when the Miranda Doctrine is not observed upon arresting, the right of self-incrimination may be invoked so as for the evidences against the defense be inadmissible. In order for the Miranda Doctrine to be validly executed, such must be stated in the presence of the counsel for the defense. Such doctrine may be waived, but must be made with utmost knowledge of its consequences (Israel et al, 1993). Although both Fifth and Sixth Amendments embody significant rights for the citizens, it still has differences, one of which is that pertaining to the inquiries pertaining to the case is not allowed in the Fifth Amendment. The Sixth amendment protects the accused upon the case against him.
Mistake of Fact Mistake of Fact is a defence formed by the The mistake of fact defence can be raisd normally if: (a) The mistake was an honest one (b) No offenc would have been committed had the circumstances been as the accused believed them to be Most criminal law systems in developed states exclude mistake of law as a defence, and the Supreme Court of Canada has limited the defence by arguing that 'mistake of fact' must be baed on more than the mere assertion by the accused of the mistake belief. The courts have also been less willing to apply this defenc when an accused makes a mistake dealing with the nature of illegal drugs. In 1992 the offence of sexual assault was amended to restrict the defence of mistake of fact. Section 273.2 of the Criminal Code now states that the accuser's belief that the complainant consented is not a defence if: (a) It arose from the accused's, or (i) self-induced intoxication, or (ii) recklessness or wilful blindness, or (b) the accused did not take the reasonable steps in the circumstances known to the accused at the time, to a certain that the complainant was consenting. The defence of Mistake of Fact is sometimes allowed as a valid defence because, although the defendant has committed the actus reus o the offense, the defendant may honestly belive in a set of facts that would prevent him or hr from forming the mens rea required to constitute the crime.
The initial case to examine is DPP v Smith, where the House of Lords held that an objective stance was applicable in establishing oblique intent if a person intended the natural and probable consequence of his actions. However, this legal position was overturned and reversed by the passing of the Criminal Justice Act 1967. Through statute, Parliament intended for s8 of the Criminal Justice Act 1967 to define the meaning of oblique intent, to include that a court or jury, when, ‘determining whether a person has committed an offence- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions;’ but more essentially, ‘(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.’ The courts ruled that a subjective test be required when determining oblique intent, answering the first two questions given above, but giving rise to a series of consecutive issues regarding the penultimate question: how probable is it that the adverse effect will occur but more essentially, does it have to be virtually certain to occur or does it have to be mere