FINAL EXAM
Course Name:
________________CRIMINAL LAW CLJ2100________________

School Name:
_____________PALM BEACH STATE COLLEGE___________________

Any words, works, or statement are solely my own,
And I shall not cheat, take another words, plagiarize or commit any violations of this course, this Professor’s rules, or the University’s Policies,
Otherwise seek the consequences of a failure and possible suspension or expulsion.

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Explain the Eighth Amendment (Cruel and Unusual Punishment Clause).
The Cruel and Unusual Punishment Clause can be found in the English Bill of
Rights in 1689 and later adopted by the Eighth Amendment to the United States
Constitution in 1787. The phrase describes “punishment which is considered unacceptable due to the suffering, pain or humiliation it inflicts on the condemned person”. This amendment also includes the text that “excessive bail shall not be required, nor excessive fines imposed...”. It is thought that defendants who are not bailed have a more difficult time preparing for their defense. And by being
“imprisoned” they are therefore being “punished” for the duration. That is why that questions of bail are always to be taken seriously by the courts.
However, the Cruel and Unusual Punishment Clause did not make our
Founding Fathers necessarily opponents against the Death Penalty. The Crimes Act of 1790 mandated the death penalty for treason, and also the mutilation of the corpse. There is no doubt, our modern courts would find mutilation of a corpse to be regarded as cruel and unusual as well as abhorrent in practice. The practice of flogging was also considered a common “back then” but clearly unacceptable today.
We can see that “cruel and unusual” seems to change with the change of society.
Our Eighth Amendment would prohibit: 1) the torture of U.S. citizens 2) inhumane prison conditions for example - these tend to be “de facto” punishments and not necessarily handed down as punishments or not.
Any punishment would be considered “cruel and unusual” would be when it is grossly disproportionate to the crime for which it is given out. For example: a defendant is found guilty of falsifying public records and it sentenced to 10 years of hard labor. A sentence like this would likely be considered a violation of the Eight
Amendment.
Most recently, in the Supreme Court, Justice Scalia invoked the Eight
Amendment, when he was asked if he had read the 2700 pages of Obamacare legislation. 2) Federal Crimes and Federal Jurisdiction - What Crimes belong to the Federal
Government?
As an State of Florida regulatory investigator, one of the things that I still find fascinating is the jurisdiction.
Foremost, when a state or federal government issues a criminal complaint and seeks to commence a criminal action, it must allege and prove that the court has jurisdiction not only over the offense (or offenses) charged but also over the defendant’s person (Gardner, 2009). According to the Sixth Amendment the accused has a right to “speedy and public trial, by an impartial jury of the State and
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district wherein the crime shall have been committed...”. Therefore, the defendant has the right that the criminal trial occur in the county where the crime is alleged to have occurred also known as the venue. According to Gardner’s textbook, the definition of venue is “in criminal prosecution the proper location for the criminal trial. Venue is usually in the county in which the crime is alleged to have occurred.”
However, the state must also show the court it has jurisdiction over the offense charged and over the person. And these must not fall in the category of
Federal crimes. Federal crimes fall into three classes: 1. Crimes that affect interstate or international travel or communication. Example: Wire Fraud Act (interstate transfer of stolen property or possession), the Mann Act (interstate prostitution) 2.
Crimes committed in places beyond the jurisdiction of any state (crimes committed in the District of Columbia and crimes committed overseas by the military) 3.
Crimes that interfere with the activities of the federal government (fraud byuse of the U.S. mail, robbery of federally insured banks, violation of federal income tax laws, attempted overthrow of the U.S. government). But the federal government would also have jurisdiction of criminal homicide if: a) special maritime and territorial jurisdiction b) death resulted from terrorism c) the victim is the President of the United States or Vice President d)the victim was engaging in performing federal function etc (Gardner, 2009). It was in 2004, when the Supreme Court decided on two cases that involved people detained by the US military. The Court held that the U.S. citizen held by the US Military in Virginia as an alleged enemy combatant could be detained, if it was determined that he was in fact an enemy combatant (Hamdi v Rumsfeld, 2004).
3) List the circumstances that permit the government to regulate speech based on content? Freedom of Speech. It is our First Amendment and yet easily the most litigated and confusing of them all. What does the First Amendment REALLY say about our right to speech? Is it an absolute right?
Well, yes and no.
Cornell University, Legal Information Institute online has some great information on the First Amendment. First off, it has a copy of the actual amendment that states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. We are given the protection of the right to freedom of religion and freedom of expression from the government interference. A reminder that freedom of expression encompasses: speech, press, assembly and petition the government for

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redress or grievances, (and the implied rights of association and beliefs).
We are allowed to express ourselves without interference or constraint from the government. However, it is not carte blanche. The
Supreme Court has also recognized that government may prohibit some speech that may cause a breach of the peace or cause violence. A list of unprotected speech is the following:
1. Advocacy of Illegal Action - except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg v Ohio, 1969).
2. Fighting Words - inflammatory words that are either injurious by themselves or might cause the hearer to immediate retaliate or breach the peace. (Nolo’s Law Dictionary, 2012)
3. Commercial Speech - speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character. Advertisements are entitled to less protection; and commercial speech that is false or misleading is not entitled to any protection under the First Amendment, and therefore can be prohibited entirely.
4. Obscenity - probably one of the most problematic forms of regulated speech. A test for obscenity derived from Roth that included the following five-part structure: (1) the perspective of evaluation was that of an ordinary, reasonable person, (2) community standards of acceptability were to be used to measure obscenity, (3) works whose predominant theme was questionable were the only target of obscenity law, (4) a work, in order to be evaluated for obscenity, had to be taken in its entirety, and (5) an obscene work was one that aimed to excited individuals’ prurient interest. Miller revised Roth’s emphasis on creating a uniform Federal standard. Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States. So far no new standard has replaced the Miller test of obscenity.
4) Know the meaning of corpus delicti and its role in criminal prosecutions.
According to the Lectric Law Library, the definition of corpus delicti is the body of the offence; the essence of the crime. It does not only mean the ‘actual body’ of the victim; a mistake most make with the translation of the Latin term. This term can be used to mean any material evidence of a crime or objective proof in a criminal case. It is what must be proven in a case to get either an acquittal or

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conviction. This “body of evidence” is the proof that a crime has been committed and/or taken place.
Examples of this principle apply to various criminal cases:
a) When a person is charged with theft/larceny, proof that property was stolen is the corpus delicti.
b) When someone is charged with arson, proof that something was burned or that arson was attempted.
c) In a murder case, the corpus delicti is usually the dead body of the victim but there is of course exceptions.
If the prosecution can show presumptive evidence of corpus delicti beyond reasonable doubt, the defendant can be found guilty even if the actual body of the crime cannot be directly presented. An example of a case where the actual body was never found; is that of Albert Wilding and the disappearance (and murder) of his wife Judie Wilding. On April 1, 2000, Judie Wilding disappeared and never heard from again. Her husband, Albert stated that Judie had left him without saying where she was going. It was eight and half years later, in August 2008 that Albert would be charged with murder. He had collected from various life insurance policies after he declared Judie dead in 2004. February 2011, and minutes before his trial was to commence, Albert Wilding pleaded guilty to manslaughter in Judie’s death. He stated he came home to Judie packing to leave him and accidentally shot her. He kept
Judie’s body in the bathroom and eventually tried to burn it and dispose of it. He was sentenced to five years in prison and died in 2012; a year before being released.
5) What is required in a kidnapping conviction? What movement?
What is kidnapping? Kidnapping is essentially false imprisonment plus an aggravating factor. According to the National Paralegal College, kidnapping is usually defined “to include the forcible moving of a person from one place to another.” However, what kind of movement is required to commit the crime? Well it depends. Several courts state that any movement is enough; and others, however, require that the movement be substantial. Generally the mens rea involved with the crime of kidnapping is the intent to confine or move the victim. Florida’s definition of kidnapping as the confinement, abduction, or imprisonment of another person against her or his will. The kidnapping must be committed “forcibly, secretly or by threat” and without lawful authority.
In Florida, to constitute kidnapping, the necessary movement or confinement occurring within the context of the other felony (1) must not be "slight, inconsequential, and merely incidental to the other crime"; (2) must not be "of the kind inherent in the nature of the other crime"; and (3) must have some significance independent of the other crime in that it makes the other crime substantially easier

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to commit or substantially lessens the risk of detection. That is, the kidnapping must be more than merely incidental to the other crime.
In Florida, kidnapping is classified as a felony of the first degree. Conviction of a first degree felony is punishable by a sentence of imprisonment in a state penitentiary of up to 30 years. The court may also impose an additional fine of up to
$10,000 for commission of the crime.
According to the Criminal Find Law website, it states that in Florida the aggravated kidnapping, including the kidnapping of a child under the age of 13, is punished more severely than its non-aggravated counterpart and is classified as a
"life felony." Such felonies are subject to a sentence of a term of imprisonment in a state penitentiary for life, or a split sentence consisting of at least 25 years in prison followed by probation or community control for the remainder of the person's natural life; and an optional additional fine of up to $15,000.
6) Explain reasons why child porn laws have been found unconstitutional?
There is probably nothing more abhorrent to most citizens than the sexual exploitation of children. That is why most countries have made it criminal the making and distribution of child pornography. Therefore, various laws and acts have been created in the protection of children but not all (no matter how well meaning) have passed their constitutional test.
Let’s exam CPPA - The Child Pornography Prevention Act (CPPA) expanded the definition of child pornography. CPPA criminalized the creation of what is called
“virtual child pornography,” or “morphed” child pornography. Under CPPA images that appear to depict children but do not, including images of youthful-looking adults or images that are computer-generated would be illegal. The U.S. Supreme
Court agreed with the Free Speech Coalition, and in a decision handed down on
April 16, 2002, found these parts of the CPPA unconstitutional on two grounds:
a) First, the law, as written, is over-broad, prohibiting otherwise legal, nonobscene images depicting teenagers engaging in sexual activity, such as filmed depictions of Romeo and Juliet or Lolita.
b) Second, the prohibition on child pornography is based on the link between the creation of the image and the sexual abuse of the children shown in the image. If an image is created by use of computer technology or by photographing adults pretending to be children, there is no basis in the law to ban the image. (ALA 2012)
Then came the Children’s Internet Protection Act. This is a federal law enacted by Congress to address concerns about access to offensive content over the
Internet on school and library computers.
According to the FCC (Federal Communications Commission) the following are requirements to adhere to the CIPA by schools and libraries but does not require the tracking of Internet use by minors or adults:
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Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an Internet safety policy that includes technology protection measures. The protection measures must block or filter Internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors (for computers that are accessed by minors). Before adopting this Internet safety policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposal.
● Schools subject to CIPA are required to adopt and enforce a policy to monitor online activities of minors.
● Schools and libraries subject to CIPA are required to adopt and implement an
Internet safety policy addressing: (a) access by minors to inappropriate matter on the Internet; (b) the safety and security of minors when using electronic mail, chat rooms and other forms of direct electronic communications; (c) unauthorized access, including so-called “hacking,” and other unlawful activities by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) measures restricting minors’ access to materials harmful to them.
And the final (but definitely never the last one ever to be introduced) is
COPA. Congress passed The Child Online Protection Act (COPA) to replace the
Communications Decency Act. (The Communications Decency Act was held unconstitutional in a 9–0 decision by the Supreme Court in 1997.) COPA prohibits the transmission of any material over the Internet deemed “harmful to minors,” if the communication was made for a commercial purpose. However, most recently,
COPA was deemed unconstitutional by the Supreme Court. U.S. Supreme Court rejected prosecutors' last-ditch defense of the Child Online Protection Act, meaning that the law will not be enforced.
A CNET article published in 2009, reported that, “COPA was enacted during the anti-Internet porn scares of the late 1990s, in part as a narrower answer to a previous Net censorship law that also met its demise in the courts. Any commercial
Web site operator that posts "material that is harmful to minors" faces six months in prison and a fine of up to $50,000....It said COPA places "minor burdens on some protected material--burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography.
There is no serious, practically available 'less restrictive' way similarly to further this compelling interest. Hence the Act is constitutional." Scalia went even further.
But the court didn't seem to want to revisit COPA a third time. Wednesday's ruling was a mere refusal to even hear the case, issued without explanation.
Even among anti-porn groups, support for COPA waned as the years
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progressed, and federal prosecutors focused on obscenity and child pornography.”
I believe many would agree with Chris Hansen, the attorney for the ACLU, when he states that “It is not the role of the government to decide what people can see or do on the Internet, these are personal decisions that should be made by individuals and their families.”
Let’s face it - would the Internet even exist if not for Porn?

EXTRA CREDIT
What was your favorite topic so far this term? Why did you enjoy it and what topic would you like to learn as we move further into the course?

Although this criminal law class is just a basic overview of the topic; there is no doubt it has made me even more fascinated with the law. I think it is important not to just know that certain laws exist but WHY they were placed there to begin with anyway. I think the media and the television shows has given us the false impression that “we know the law and our rights” - but it is not true. Criminal law is complex and it isn’t always going to get end up getting “the bad guy” either. There is so much information that law enforcement (not to mention lawyers and judges) must know - that is hard to believe we don’t cut them more slack when mistakes are made. I also believe that no matter how many times you study criminal law or even become a lawyer, cop or judge; a person will never truly be an expert. Laws are constantly changing because people and places change (as well as technology). This is one of those fields where growth and knowledge never end. I have enjoyed this course immensely and I hope to continue learning.
I found the following quotes about the Law that I think you would find interesting as well:
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual. - Thomas Jefferson
The strictest law sometimes becomes the severest injustice. - Benjamin Franklin
At his best, man is the noblest of all animals; separated from law and justice he is the worst. - Aristotle
No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it. - Theodore Roosevelt

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