Category: Court

Introduction

Electronic surveillance refers to “the use of an electronic, mechanical, or other surveillance devices to acquire information, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”¹ Electronic surveillance involves the use of an electronic device to spy on a person with or without their knowledge. The main techniques of “electronic surveillance include audio recording, videotaping, and taking photographs.”² State agencies, businesses, individuals, and homeowners in the United States use electronic surveillance for different purposes. Government officials use it for law enforcement purposes by gathering information or evidence to prosecute criminals.³ Businesses and homeowners use electronic surveillance to enhance security within their premises.

For instance, ADT provides video surveillance services that enable homeowners to monitor the security situation in their homes (ADT). Despite its ability to enhance criminal investigations and security, the use of electronic surveillance continues to receive resistance from the public because it facilitates an intrusion of citizens’ privacy. This paper contributes to the debate on the legality of electronic surveillance by discussing the technologies used to implement it, the application of the Fourth Amendment to new electronic surveillance technologies, and the use of electronic surveillance among private individuals. Furthermore, the paper will argue against the return of Olmstead, which restricts the Fourth Amendment to physical inversion.⁴

Electronic Surveillance Technologies

Wiretapping

Wiretapping is a technique used to monitor and collect information from telecommunication systems.⁵ Wiretapping involves the use of “electronic or electrical equipment to intercept the oral communications of non-consenting parties by a third party.”⁶ Wiretapping is mainly used by the government and law enforcement agencies to collect evidence against suspected criminals.⁷ In the United States, the use of wiretapping is subject to approval by a judge.⁸

Over the years, the use of wiretapping in the United States has been enhanced through the collaboration of law enforcement agencies, telecommunication companies, and the judiciary. The Communications Assistance for Law Enforcement Act (CALEA) allows law enforcement agencies to access all telephone and Voice on Internet Protocol (VoIP) communications through wiretapping.⁹

Congress passed the Act in 1994 so that telecommunication companies can assist law enforcement officers in conducting authorized electronic surveillance.¹⁰ In this regard, the Federal Bureau of Investigation (FBI) has partnered with telecommunication companies such as AT&T and Verizon to access information concerning citizens’ calling and internet use histories.¹¹ Law enforcement agencies use both human agents and sophisticated computer software that convert the intercepted audio data from speech to text.¹² The intercepted information is often used as evidence to prosecute criminals in court.

Bugging

Bugging involves the installation of a small electronic device such as a microphone at a strategic place to overhear conversations.¹³ Bugging provides better surveillance than wiretapping because it can capture several conversations at the same time.¹⁴ The information collected by the microphone is usually transferred to a recording device for future reference. Bugging can only be used as a surveillance technique after being approved by a judge.¹⁵

Photography

Surveillance photography involves the use of audio-visual devices or equipment to monitor the conversations and movements or actions of others.¹⁶ Video cameras are often used for surveillance photography. The cameras are usually connected to an Internet Protocol network (IP network) or a recording device that stores footages from the area under surveillance.¹⁷ The use of video cameras has been improved significantly by the development of computer software that automates the process of converting video footage into databases that can easily be searched.¹⁸ Moreover, security officers or law enforcement agents often use motion sensors to record only the most important activities in the area under surveillance.¹⁹

Wired Agents

A wired agent is where human beings and electronic devices are used to monitor or spy on an individual.²⁰ In this case, an individual carries a body camera or a recording device, or both to spy on a third party.²¹ The wired agent has to be at the same venue as the party under surveillance in order to record conversations. In this context, the use of wired agents seems to violate the Fourth Amendment, especially if the recording is done in an area where the person under surveillance expects privacy.²²

For instance, in 1971, James A. White was charged with engaging in illegal transactions in narcotics using information that had been collected by a wired agent.²³ Although the agent was not present in court to provide evidence, the trial Court accepted the information he had collected through a radio transmitter as evidence, thereby justifying the use of wired agents²⁴. However, the Court of Appeals, Second Circuit reversed the conviction of James White on the basis that the evidence provided by the wired agent was not permissible under the Fourth Amendment.²⁵

This led to the conclusion that wired agents should not be used without a warrant. However, different states have different laws that guide the use of wired agents for surveillance. For instance, in Virginia, a warrant is not needed to use wired agents since only one party to a conversation has to know about the surveillance for it to be legal. In most cases, the person under surveillance does not have to know about the intrusion by the wired agent. Thus, the government does not need to obtain a warrant in order to use a wired agent to conduct surveillance.

Social Network Analysis

Social network analysis involves collecting data from social network sites such as Facebook and Twitter.²⁶ In addition, it involves an analysis of phone call records to obtain details about the callers.²⁷ Social data analysis is facilitated by computer software that sifts through an enormous amount of data stored in social network sites in order to identify vital information such as the users’ personal interests, affiliations, and activities. Apart from the security agencies, companies commonly use social network sites for marketing purposes.

The Fourth Amendment and the New Surveillance Technologies

The Fourth Amendment states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”²⁸ Thus, security agents are required in most cases to have a court warrant that is based on probable cause and is supported by an oath or affirmation in order to conduct a lawful search and seizure.²⁹ In addition, the warrant must provide a clear description of the place to be searched, as well as the individual or thing to be searched.³⁰ The objective of the Fourth Amendment is to protect citizens from arbitrary invasions by the government.³¹

The use of Search and Seizure in Electronic Surveillance

The application of the Fourth Amendment to the new technologies of electronic surveillance depends on the understanding of what constitutes a search.³² Under the Fourth Amendment, a search refers to the infringement of an expectation of privacy by an agent of the government. A seizure, on the other hand, refers to the “interference with an individual’s possessory interest in property.”³³ According to the Fourth Amendment, a search and seizure are considered unreasonable only if the owner of the property has a reasonable expectation of privacy. For instance, in the case of Katz v. the US, the law enforcement agents recorded the conversations of the petitioner using an electronic device at a telephone booth that the petitioner relied on to make phone calls.³⁴

In this case, the Ninth Circuit Court of Appeals held that the surveillance was a search and seizure under the Fourth Amendment since the petitioner expected privacy in his oral conversations. This ruling indicates that the Fourth Amendment protects citizens from unlawful search and seizure that may be conducted by the government through electronic surveillance.

Therefore, the Fourth Amendment is not applicable to the new techniques of electronic surveillance if their use does not constitute a search. For instance, in Olmstead v. the US, the court ruled that the Fourth Amendment did not apply to wiretap.³⁵ This decision was adopted because obtaining information through wiretapping did not involve a physical trespass on the premises of the person who was under surveillance.³⁶

In addition, the court held that seizure applied only to tangible items. Hence, the interception of a conversation through wiretapping did not qualify as a seizure. Contrary to Olmstead’s case, the Ninth Circuit Court held that the use of a thermal imager in Kyllo’s home by the government to collect evidence constituted a search even though the law enforcement agents did not physically trespass on Kyllo’s premise.³⁷

According to the Court, using a sense-enhancing technology to obtain information concerning the interior of a premise that cannot otherwise be accessed without physical intrusion constitutes a search. The legal significance of this ruling is that it extended the application of the Fourth Amendment to the use of technologies that facilitate the intrusion of citizens’ privacy by the government. In this case, the Fourth Amendment applies to technologies such as bugging and photographic surveillance if they are used without a warrant.³⁸

The Warrant Requirement

A search by government agents may only be done if it is allowed through a court warrant. However, there are several exceptions to the warrant requirement, which include the following. First, security agents may search an individual and the area surrounding him if he has been lawfully arrested. Second, the “police do not require a warrant to seize evidence in plain view as long as their presence in the area where the evidence can be viewed is lawful.”³⁹ A judge must have substantial evidence to prove that the search warrant should be issued to allow the use of electronic surveillance. In this case, the use of electronic surveillance should be authorized only if there is sufficient proof that it will enable law enforcement officers to obtain evidence against a suspected criminal.⁴⁰

However, a search warrant is often not needed when using some techniques of electronic surveillance, such as social network analysis.⁴¹ This can be illustrated by the case of Smith vs. Maryland, in which the Maryland Court of Appeals held that the use of a pen register to record phone numbers at the petitioner’s home did not constitute a search under the Fourth Amendment. According to the Court, the petitioner did not have a legitimate expectation of privacy in the phone numbers that he used since the numbers are always legally available to third parties (telephone companies). The Patriot Act also allows security agencies to search email and telecommunication databases in order to improve investigations on terrorist activities. Furthermore, the Patriot Act allows law enforcement agencies to search information stored in databases for various public institutions such as libraries.⁴²

In this case, the Act allows security agencies to use a basic warrant rather than a surveillance warrant to access data from the aforementioned databases. This improves the government’s ability to access citizens’ information that is held by third parties. Since the Act allows various government agencies to share information about a suspected criminal, the chances of invasion of privacy increase.

Reasonable Expectation of Privacy

The application of the Fourth Amendment to new technologies of electronic surveillance depends on whether privacy is expected by the person to be monitored.⁴³ However, the expectation of privacy is not reasonable if a person willingly or knowingly provides certain personal information to a third party.⁴⁴ This includes the provision of personal data to organizations such as banks, social network sites, and retail shops. In this regard, businesses such as banks can use electronic surveillance to monitor their clients’ banking activities without violating their rights to privacy.

However, the Fourth Amendment applies to electronic surveillance in cases in which the person under surveillance has a reasonable expectation of privacy. For instance, in the case of Warshak v. the US, the Department of Justice illegally instructed the petitioner’s email provider to store his future emails. In this case, the Sixth Circuit Court of Appeals held that the Stored Communication Act does not apply to emails that will be sent in the future.⁴⁵

The Stored Communication Act states that the “government may require the disclosure by a provider of electronic communication service of the contents of electronic communication that is in electronic storage pursuant to a warrant issued by a judge.”⁴⁶

Similarly, the government can order a company that provides remote computing services to disclose the content of stored electronic or wire communication that belongs to its customers. The content of the stored communication includes the customers’ names, addresses, telephone numbers, and messages. According to the Stored Communication Act, the government is required to provide sufficient evidence that the information obtained by searching stored electronic communication will help in criminal investigations in order to obtain a search warrant. This requirement prevents the government from using electronic surveillance to conduct a search on stored electronic communication without any good reason.

The Use of Electronic Surveillance by Private Entities

Security Purposes

Electronic surveillance technologies are widely used by private businesses and individuals to ensure security. Photography is the most common technology for ensuring security within premises. Most stores, banks, and restaurants have CCTVs, which monitor the movements or activities of people in specific areas.⁴⁷ The CCTVs consist of cameras that are connected to computer systems that analyze and store footage. In addition, they can be connected to alarm bells to alert security personnel in the event of unlawful activities such as theft.⁴⁸ For instance, the use of CCTVs in supermarkets helps to save millions of dollars every year, which would be lost due to pilferage.⁴⁹

Apart from CCTVs, banks use miniature cameras in their automated teller machines (ATM) to prevent the unauthorized use of credit and debit cards. In this case, the cameras are able to capture the details of ATM users for authentication purposes. Surprisingly, criminals usually install similar cameras in ATMs to capture card details such as pin numbers during transactions.⁵⁰ The criminals then use the details to manufacture identical cards, which they use to withdraw cash from unsuspecting customers’ accounts.

Homeowners, employers, and “car owners also use electronic surveillance technologies to protect their properties from theft.”⁵¹ This involves the use of biometric access control systems, which use fingerprints or facial recognition techniques for authentication.⁵² Similarly, intruder alarms are used to monitor tampering or intrusion at residential and commercial buildings. The alarms have sensors that detect intrusion and trigger a siren, which alerts security agents to respond immediately. Similarly, car owners use intruder alarms to prevent theft or unauthorized access to their cars.

Employee Surveillance

Electronic surveillance is widely used by medium-sized and large organizations to monitor the behavior or activities of their employees. There are several techniques of monitoring employees at the workplace. First, employers use call monitoring to track the communication activities of their employees. This involves listening to and recording employees’ live phone calls with the aid of electronic devices.⁵³

The recorded conversations are often reviewed and analyzed at a convenient time. Second, employers use photographic surveillance to observe the activities of their employees. In this case, employers place cameras in hidden or open places to record the activities of their employees. However, the use of surveillance cameras is often restricted to areas in which employees’ expectation of privacy is considered unreasonable. Finally, employers use computer surveillance to observe the behavior of their employees. Computer surveillance refers to the “use of computerized systems to automatically collect information about how an employee is performing his or her job.”⁵⁴

In this regard, employers use computer software to track the websites visited by employees, as well as the amount of time they spend on the internet. Some employers use video display terminals to monitor the use of computers in terms of the employees’ typing speed and errors made during typing, among other mistakes. Employers also monitor employees’ communication through email. In certain cases, the ability of employers to monitor employees’ communication is limited by the Electronic Communications Privacy Act (ECPA). This Act prohibits “unauthorized and intentional interception of wire, oral, and electronic communications during the transmission phase, as well as unauthorized access to electronically stored communication.”⁵⁵

There are two exemptions to the ECPA, namely, “the services provider exemption and the consent exemption.”⁵⁶ The service provider exemption allows employers to access their employees’ communication if they (employers) are the actual providers of the communication network. However, if a third party provides the communication network, the employer will be liable for violating the ECPA if they gain unauthorized access to employees’ emails and other forms of digital communication. Under the consent exception, the employer is required to obtain the approval of their employees before accessing their private communication.

Marketing

Electronic surveillance has become an important tool for implementing marketing plans. Businesses such as banks and supermarkets use smartcards or loyalty cards to access the personal details of their customers. They also use the cards to monitor their customers’ purchasing patterns.⁵⁷ The information obtains through the cards can be used to reward some customers and to make decisions concerning product development. Moreover, observing shopping patterns enable businesses to understand their customers’ tastes and preferences. This enables businesses to stock the right products at the right time. Some companies use electronic surveillance to monitor the effectiveness of their sales campaigns.⁵⁸

Online retailers use cookies technology, which enables them to monitor the use of their sales websites by their customers. The cookies technology can keep track of the items that a particular customer bought in the last shopping and use the information to generate a shopping list for the customer. Generally, these surveillance activities are legal since customers voluntarily provide their personal information to banks and stores. In addition, most companies issue notification of their use of cookies technology to collect information from visitors to their websites.

Arguments Against the Return of Olmstead

In Olmstead v. the US, the court held that the Fourth Amendment did not apply to electronic surveillance. This decision was based on the difference between electronic surveillance and other forms of government invasions. Electronic surveillance differs from other forms of intrusion in three ways. First, it does not involve the seizure of any tangible item or property.⁵⁹ Second, it does not involve a search of a clearly defined place. Third, the target usually has no knowledge of the government’s intrusion. These differences led to the conclusion that the Fourth Amendment does not apply to electronic surveillance. For instance, in Olmstead v. the US, the court concluded that the use of electronic surveillance did not violate the Fourth Amendment since the invasion was conducted without trespass on the respondent’s property.⁶⁰

Similarly, the court concluded that the Fourth Amendment was not violated in Goldman v. the US.⁶¹ In this case, the device used for electronic surveillance was installed on the outer wall of the defendant’s premises. Hence, there was no trespass.⁶² However, in Silverman v. the US, the court found a violation of the Fourth Amendment since the device used for surveillance was inserted into the wall (a form of trespass) of the defendant’s premise.⁶³

The interpretation of the Fourth Amendment, as illustrated by the aforementioned cases, changed after 1967.⁶⁴ In US v. Jones, the court held that the government’s use of GPS to track the defendant’s vehicle was a search because the GPS was installed in the car after the expiry of the warrant that had authorized its use.⁶⁵

Consequently, the evidence collected with the aid of the GPS while the car was parked at the defendant’s compound was rejected. The rejection of the evidence was based on the fact that the defendant had a reasonable expectation of privacy within his compound. However, the evidence collected using the GPS while the car was driven on the streets was accepted because Jones did not have a reasonable expectation of privacy when driving on public roads.

The evidence that had been rejected by the District of Columbia Court was later used to charge Jones with drug trafficking. However, the Court of Appeals for the District of Columbia Circuit held that the evidence obtained by the GPS was inadmissible because it had been obtained without a valid warrant. Clearly, these two cases indicate that the application of the Fourth Amendment cannot be restricted to physical intrusion by the government. Given the advancements in the technologies for electronic surveillance, it will be very easy for the government to invade the privacy of every citizen.

The government and other supporters of the return of Olmstead also argue that unrestricted use of electronic surveillance does not cause harm to most citizens since it is only used to enhance security.⁶⁶

Consequently, citizens should not worry about the government’s use of electronic surveillance, especially if they have not committed any crime. However, this argument has several flaws. First, the application of unrestricted surveillance can severely affect the freedom of citizens. For instance, the government may require all citizens to carry or wear devices that can be used to track their location to enhance the process of pursuing criminals and improving security. In this case, it can be argued that any person who fails to wear the tracking devices has criminal intentions. However, most citizens will fail to wear the devices because they are interested in protecting their privacy rather than concealing their intentions to commit crimes.

Second, unrestricted access to citizens’ personal information through searching databases and using electronic devices to record such information is prone to abuse.⁶⁷ In particular, the government’s employees who are entrusted with the information can use it for their personal gain rather than for the purposes of conducting criminal investigations. For instance, security officers can use the information in their databases to monitor the movements of their personal enemies, who may not be criminals. In this regard, the security officers will not only be abusing the information in their custody but will also be denying innocent citizens the right to privacy.

Thus, increasing surveillance is likely to lead to a rise in cases of misuse of the information provided by the citizens to the government. The decision made in Griswold v. Connecticut shows that citizens have a right to privacy, which they should be allowed to enjoy.⁶⁸

In this case, the appellant had been convicted for illegally providing advice on birth control in Connecticut. However, the US Supreme Court ruled in favor of the appellant by stating that criminalizing the use of birth control was a violation of the right to marital privacy, thereby legalizing the use of various contraceptives. This ruling creates a right to privacy that should be protected through the elimination of unlawful electronic surveillance by the government.

Third, section 605 of the Federal Communication Act protects citizens’ right to maintain privacy over their information, including telephone conversations.⁶⁹ In particular, section 605 prohibits anyone from intercepting telephone messages without the permission of the sender. In addition, the Act states that “no person shall divulge or publish the message or its substance to any person.”⁷⁰

This Act provides a strong case against the return of Olmstead in two ways. First, the word ‘anyone’ has been used in reference to both citizens and agents of the government.⁷¹ Consequently, law enforcement agents will be violating section 605 of the Federal Communication Act if they use electronic surveillance to intercept telephone messages without the permission of the sender. Second, intercepted telephone messages or conversations cannot be used as evidence in court. They cannot be used because quoting or reciting the messages in testimony in court amounts to divulging the contents of the messages, which is illegal under section 605 of the Federal Communication Act.⁷² This can be illustrated by the case of Nardone v. the US, where the defendant was charged with smuggling alcohol.⁷³

Here, federal agents had intercepted the conversations of the defendant, which they used to testify against him in court. However, the court held that the evidence was inadmissible because it had been obtained through wiretapping without a warrant, thereby violating section 605 of the Federal Communication Act.⁷⁴ Thus, Olmstead should not return so that citizens can remain protected from unlawful search and seizure through electronic surveillance.

Conclusion

The new technologies for electronic surveillance include wiretapping, bugging, wired agents, photography, and social network analysis. The Fourth Amendment applies to these technologies as long as their use constitutes a search or seizure by the government. Generally, the government has to obtain a warrant from a judge in order to conduct electronic surveillance. Private individuals mainly use electronic surveillance to improve the security of their properties, such as homes and cars. Similarly, private businesses use electronic surveillance to ensure security within their premises.

In addition, electronic surveillance is used by businesses to monitor their employees and to access information that is required to develop marketing strategies. Given the high potential of electronic surveillance to facilitate the invasion of the privacy of innocent citizens, Olmstead should not return. Moreover, the decisions made in several cases have shown that the Fourth Amendment protects citizens from illegal searches by the government through electronic surveillance technologies.

Works Cited

Adams, James and Daniel Blinka. Electronic Surveillance: Commentaries and Statutes. New York: McGraw-Hill, 2003. Print.

Borene, Andrew. The U.S Intelligence Community: Law Source Book. New York: McGraw-Hill, 2010. Print.

Brauti, Peter, Scott Fenton and Robert Hubbard. Wiretapping and other Electronic Surveillance: Law and Procedure. Boston: Cengage Learning, 2000. Print.

Brookes, Paul. Electronic Surveillance Devices. New York: John Wiley and Sons, 2001. Print.

Casey, Timothy. “Electronic Surveillance and the Right to be Secure.” Journal of Criminal Law and Criminology 41.3 (2008): 979-1030. Print.

Chen, Victor and William Ross. “The Managerial Decision to Implement Electronic Surveillance at Work.” International Journal of Organizational Analysis 34.4 (2005): 244-268. Print.

Goldsmith, Michael. “The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance.” Journal of Criminal Law and Criminology 43.2 (1983): 1-20. Print.

Solove, Daniel, Marc Rotenberg and Paul Schwartz. Privacy, Information, and Technology. New York: John Wiley and Sons, 2006. Print.

United Nations. Current Practices in Electronic Surveillance. New York: McGraw-Hill, 2009. Print.

Weckert, John. Electronic Monitoring in the Workplace. Boston: Routledge , 2005. Print.

Whitfield, Diffie and Susan Landau. Privacy on the Line. Cambridge: MIT Press, 2007. Print.

Yale, Kamisar, Wayne Lafave and Jerold Israel. Modern Criminal Procedure. Boston: West Group, 1999. Print.

Footnotes

1. James Adams and Daniel Blinka, Electronic Surveillance: Commentaries and Statutes (New York: McGraw-Hill, 2003) 11.
2. Peter Brauti, Scott Fenton and Robert Hubbard, Wiretapping and other Electronic Surveillance: Law and Procedure (Boston: Cengage Learning, 2000) 43.
3. Adams, 45.
4. In the case of Olmstead versus the United States, the Supreme Court of the United States held that the use of wiretapping to collect evidence against the defendant did not violate the Fourth Amendment. This led to the conclusion that the Fourth Amendment is not applicable to electronic surveillance.
5. Brauti 22.
6. Brauti 23.
7. Brauti 24.
8. Brauti 27.
9. See Pub. L. No. 103-414, 108 Stat. 4279.
10. Andrew Borene, The U.S Intelligence Community: Law Source Book (New York: McGraw-Hill, 2010) 9.
11. Borene 61.
12. Borene 62.
13. Daniel Solove, Marc Rotenberg and Paul Schwartz, Privacy, Information, and Technology (New York: John Wiley and Sons, 2006) 75.
14. Solove 78.
15. Solove 79.
16. United Nations, Current Practices in Electronic Surveillance (New York: McGraw-Hill, 2009) 69.
17. An Internet Protocol-based network refers to a group of computers that use a shared physical connection to the internet.
18. United Nations 71.
19. United Nations 72.
20. Brauti 50.
21. Brauti 51.
22. Brauti 68.
23. See the case of the United States versus White, 401 U.S. 745 (1971).
24. See 401 U.S 745 (91 S.Ct. 1122, 28 L.Ed.2d 453) for the decision of the judges.
25. A similar decision was made in the case of Katz versus the United States and Lee versus the United States.
26. Paul Brookes, Electronic Surveillance Devices (New York: John Wiley and Sons, 2001) 56.
27. Borene79.
28. Timothy Casey, “Electronic Surveillance and the Right to be Secure,” Journal of Criminal Law and Criminology 41.3 (2008): 979-982.
29. Casey 979-990.
30. Adams 113.
31. Adams 114.
32. Michael Goldsmith, “The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance,” Journal of Criminal Law and Criminology 43.2 (1983): 1-2.
33. Goldsmith 3-9.
34. See 389 U.S. 347 for the decisions made in the case of Katz versus the United States.
35. Casey 990-995.
36. Similar arguments were used in the case of California versus Ciraolo and Chemical Co. versus the United States.
37. See Kyllo versus the United States (99-8508) 533 U.S. 27 (2001) 190 F. 3d 1041, reversed and remanded.
38. Adams 104.
39. Adams 105
40. Kamisar Yale, Wayne Lafave, and Jerold Israel, Modern Criminal Procedure (Boston: West Group, 1999) 150.
41. Yale 151.
42. Solove 117.
43. Diffie Whitfield and Susan Landau, Privacy on the Line (Cambridge: MIT Press, 2007) 235.
44. See the case of Smith vs. Maryland.
45. Adams 169.
46. Adams 170.
47. Victor Chen and William Ross, “The Managerial Decision to Implement Electronic Surveillance at Work,” International Journal of Organizational Analysis 34.4 (2005): 244-248.
48. Chen 249.
49. Chen 250.
50. Whitfield 284.
51. Chen 255.
52. Solove 214.
53. John Weckert, Electronic Monitoring in the Workplace. (Boston: Routledge, 2005) 36.
54. Weckert 96.
55. Weckert 115.
56. Weckert 116
57. Weckert 224.
58. Chen 260.
59. Borene 301.
60. See 277 U.S. 438, 457 (1928) for the judges’ arguments.
61. See 316 U.S. 129 (62 S.Ct. 993, 86 L.Ed. 1322).
62. See 316 U.S 129, 134 (1942) for the court’s decision.
63. See 365 U.S. 505, 512 (1961).
64. See Katz, 389 U.S 351 for the application of the Fourth Amendment to electronic surveillance.
65. Borene 107.
66. Solove 172.
67. Solove 175.
68. See Griswold v. Connecticut (No. 496) 151 Conn. 544, 200 A.2d 479, reversed.
69. Adams 315.
70. Adams 316.
71. Adams 317.
72. Casey 1015.
73. See Nardone v. the United States, 308 U.S. 338 (1939).
74. Brauti 325.

The idea of attending an actual court session fascinates me as it will allow me to see, first hand, all that we learned in class. The experience will be important as I will have a chance to see all that my career entails thereby enhancing my understanding of the judicial system: my future employer.

My first expectation in attending a court session is to learn the different roles of persons normally present in the court during proceedings. These include the judge, lawyers for the complainant and the defendant, court clerk, security personnel, court administrator (bailiff), and a juvenile officer in case the accused is a minor. I will learn how each person plays out his/ her role towards ensuring that the rule of law is upheld. It will be interesting to watch the two sets of lawyers approach the same case from different perspectives and with opposing motives: that of proving the innocence of the defendant and of ensuring that he is punished.

Apart from the court staff, I expect to learn about the sections of the courtroom and the function of each. I have read that the judge sits at the bench and adjacent to him are desks used by the clerk and reporter. I have also read that the plaintiff, defendant and their respective lawyers sit on one side of the judge while the public occupies the other side (gallery). I expect to see these in practice in order to understand the courtroom system further.

In the same way, I am hoping to be familiar with the courtroom rules and regulations, such as bowing towards the judge when entering the courtroom and staying quiet during proceedings. I expect to learn other rules that are followed before, during after a court session as the judge leaves.

Attending a court session will enable me to observe all the procedures that are followed, from the preliminary hearing, disposition hearing, arraignment, pretrial hearings and sentencing. I am hoping to observe how, in the initial court proceedings, the charges are filed and how the court advises the defendant of the rights accorded to him by the state. After charges are filed, I expect to hear how the preliminary hearing proceeds, especially the cross-examination of prosecution witnesses and how the judge uses this information to either terminate or push the case to the next stage. The part I anticipate most is the cross-examination as this shows the professionalism of a lawyer and a carefully planned cross-examination can lead to the acquittal of a suspect.

Besides cross-examination, I am hoping to see what criteria the judge uses to determine whether a trial should be dismissed or taken to the next stage of hearing. When the latter occurs, I hope to see how the judge uses the evidence presented to him to determine the punishment to be meted on the suspect.

Finally, I have expectations of getting to hear of the language used in the court, some of which I have heard in the news channels or read. These terms include sustained, overruled, hearsay, parole, and plea among a large group of other words. I have great expectations of this day and it will be a major step towards achieving my childhood desire of working in the judiciary.

Introduction

Mental disorders are quite a common cause of crimes of varying severity. However, earlier a special committee considered the mental state of the criminal and according to their research made a verdict regarding the sanity of the person. Today another system has appeared. The case of Mr. John Snodgrass demonstrates a new approach to the trial of men with mental problems. The opportunity to become a member of the mental health court program allows the guilty to participate in the course of treatment voluntarily and get a qualified help from experienced psychiatrists.

The intent of the Mental Health Court

The primary purpose of this program is to work with criminals whose mental state is impaired. The idea of the project is that the accused become a participant of the program voluntarily. According to Whitbourne (2017), it will be convenient enough for the trial if the defendant independently seeks help from specialists. Nevertheless, it does not always happen; therefore, qualified experts designed this course for those who can not adequately assess their mental state and understand that particular problems are the cause of severe crimes.

Working with dangerous criminals is not the only goal of the program. It can be noted that psychiatrists are ready to provide the necessary assistance not only to dangerous criminals with the inclinations of a murderer or a rapist. According to Bartol and Bartol (2014), criminal behavior is a rather common ailment, and some people with severe mental abnormalities do not always commit crimes. If the mental health court can prevent potential danger and help the patient to overcome the disease, it will mean that the program is coping with its tasks, and its creators implement them successfully.

Judge’s Decision Concerning the Case of John Snodgrass

The essence of John Snodgrass’s case is that he was convicted for the commission of the crime related to pedophilia. After he had tried to seduce little girls in the park, the authorities arrested him and took him into custody. Snodgrass’s lawyer proved that his client had a mental disorder and could not control his behavior. The judge who conducted the case agreed to allow the defendant to become a participant in the mental health court program voluntarily and appointed him an appropriate course of treatment, which the man had to follow.

Perhaps, the judge’s decision was entirely reasonable because, according to Skeem, Steadman, and Manchak (2015), “higher-risk individuals with mental illness should receive intensive services” (p. 918). Moreover, the defendant himself agreed to participate in the program and to take the path of correction. However, this can hardly prove that his actions will no longer be repeated, and Snodgrass will not demonstrate the inclinations associated with pedophilia anymore.

If the judge made such a decision, probably, he had enough grounds for it. Nevertheless, participation in the program does not guarantee a complete cure for a mental disorder. As Skeem, Winter, Kennealy, Louden, and Tatar (2014) note, defendants with mental health problems often have the ability to manifest recidivism regardless of the quality of the treatment provided to them. Accordingly, the participation of Snodgrass in the rehabilitation course does not give a full guarantee that the man will be cured and get rid of his mental illness.

Other Alternatives Appropriate for the Defendant

As for other possible decisions, it could also have been beneficial for the defendant to stay in a specialized medical institution. According to Glenn and Raine (2014), criminal behavior has a neurobiological basis, and it means that the formation of strange decisions occurs at the subconscious level and is born at an early age. Perhaps, if the court had decided to have the defendant spend some time in a particular medical institution for dangerous criminals, it would have had a greater positive effect. It is likely that such severe measures could have influenced the criminal more strongly, which, in the end, would help him get rid of his psychological addiction.

Furthermore, to prove the validity of the lawyer’s statements about the insanity of his client, it was possible to conduct an additional examination with the use of modern methods of clinical analysis. Raine (2013) remarks that the court, however, should consider all criminal cases committed under the influence of mental disorders as a full-fledged crime. It may be that the justification for Mr. Snodgrass’s mental illness is one of the points of the defense. In this case, it becomes necessary to check carefully whether the illness of the defendant is real or whether all his actions were committed to insanity. If it were confirmed, it is possible that the judge would have passed a more severe sentence than the course of the rehabilitation program.

Thus, the opportunity to participate in the mental health court gives any defendant a chance to undergo specialized treatment voluntarily and get help from psychiatrists. The effectiveness of the program should be confirmed by the doctors who are involved in this course. The validity of the defendant’s participation in this course should be decided by a special commission of experts. This commission makes the appropriate assumption about the timing and type of treatment according to the proper medical examination.

References

Bartol, A. M., & Bartol, C. R. (2014). Criminal behavior: A psychological approach (10th ed.). Boston, MA: Pearce.

Glenn, A. L., & Raine, A. (2014). Neurocriminology: Implications for the punishment, prediction and prevention of criminal behaviour. Nature Reviews. Neuroscience, 15(1), 54-63.

Raine, A. (2013). The psychopathology of crime: Criminal behavior as a clinical disorder. San Diego, CA: Academic Press.

Skeem, J. L., Steadman, H. J., & Manchak, S. M. (2015). Applicability of the risk-need-responsivity model to persons with mental illness involved in the criminal justice system. Psychiatric Services, 66(9), 916-922.

Skeem, J. L., Winter, E., Kennealy, P. J., Louden, J. E., & Tatar, J. R. II. (2014). Offenders with mental illness have criminogenic needs, too: Toward recidivism reduction. Law and Human Behavior, 38(3), 212-224.

Whitbourne, S. K. (2017). Abnormal psychology: Clinical perspectives on psychological disorders (8th ed.). New York, NY: McGraw-Hill.

Introduction

The consequences of crimes committed by children are faced by every society in the world and everyone to some extent feels the impact. Understanding why children commit crimes is paramount since the proper distribution of such information can serve as the foundation of creating a crime-free society. Some of the reasons why children commit crimes include being neglected by parents, racial discrimination, being in a state of poverty, access to weapons, and access to drugs (Beyer, 2003). Thus, a proper understanding of why children commit crimes is vital since it helps the juvenile justice system to know the kind of program that should be put in place to induce cognitive behavior. The purpose of this paper is to provide a summary of two juvenile articles and to compare and contrast their philosophical differences.

Summary of the Article ‘Best Practices in Juvenile Accountability: Overview’

This article reflects the “parens patriae” doctrine that takes into account the differences that exist between the children and the adults in terms of accountability as well as room for rehabilitation. It operates on the basis that the children can be successfully rehabilitated, hence increasing the safety of society. Moreover, it operates flexibly since it tries to find a balance between the juvenile court and the needs of the state. Therefore, when a child commits a crime, the police have the responsibility of arresting him/her. This is then followed by intake, diversion, detention, waiver, adjudication, disposition and finally, aftercare (Beyer, 2003).

The purpose of the “parens patriae” doctrine is to divert young offenders from facing punishment by providing them with an opportunity for a rehabilitation program (Beyer, 2003). It also handles the children who are neglected by their parents and provides them with the appropriate intervention program. When implemented appropriately, this program plays a critical role since it reduces the prison admissions, and it therefore helps to reduce the costs associated with crimes.

Summary of the Article ‘Changes to OJJDP’s Juvenile Accountability Program’

This article reflects the mandates of “get tough movement” that has enacted policies, which facilitate prosecution of young offenders in the juvenile courts. This is because when a child commits a serious crime such as murder, this program considers such a child as an adult; hence, he/she is liable to punishment (Andrews & Marble, 2003). Depending on age, attitude of the offender, and evidence produced in the court, the juvenile court judges have the overall responsibility of determining where the child will serve. Discipline can be imposed by subjecting the children to severe environment or by providing the offenders with an opportunity to meet with the adult prisoners in order to frighten them.

Philosophical Differences of “Parens Patriae” Doctrine and the Mandates of the “Get Tough Movement”

The philosophy of the “Parens Patriae” doctrine implies that children can develop cognitive behavior by letting them know the consequences of the actions they take. Connecting consequences with actions lets the children choose their actions correctly; as this portrays to them that, they are accountable for their actions. It also shows the children that every step of growth goes along with an increased responsibility for actions (Beyer, 2003).

This compares with the philosophy of the mandate of the “get tough movement” as it attempts to develop children’s cognitive behavior by helping them to identify their distorted thinking or distorted deeds by creating awareness of the consequences of these behaviors. The child offender is detained in order to find out what is wrong with his/her circumstance that aggravates suffering (Andrews & Marble, 2003).

The “Parens Patriae” doctrine borrows heavily from the philosophy of lifespan development. This philosophy states that a rehabilitation program can prevent the children from committing crimes since it attempts to transform cognitively the distorted cognitive behavior of the child involved in criminal acts. The program plays a critical role in the life of the offender when the offender attempts to justify his/her criminal acts.

In light of this weakness, this doctrine attempts to assist the offenders in defining the problems that make them to commit crimes. The program thereafter generates new alternative for these children and implement viable solutions for them (Beyer, 2003). The philosophy of the “parens patriae” doctrine is thus based on the fact that behavioral development is guided by objective past rather than subjective goals.

This contrasts with the philosophy used in the mandates of the “get tough movement”. The philosophy used by the “get tough movement” derives from the fact that proper childcare is based on guiding the child on its journey to adulthood by increasing its level of self-understanding and self-awareness through using the commands laid down by the justice system (Andrews & Marble, 2003). The mandates of “get tough movement” avoid acting like experts in the child’s life as they do not dispense proper advice to them on how they should regulate their past thoughts and deeds. The philosophy of the mandates of the “get tough movement” is thus based on the fact that behavioral development is guided by subjective goals rather than objective past.

Conclusion

Although the main aim of the “Parens Patriae” doctrine and the mandates of the “get tough movement” is to induce cognitive behavior to the neglected children and the young offenders, the intervention and the strategy applied differ from one another depending on the philosophical view. Effectiveness in inducing cognitive behavior thus calls for a judicial system that has good skills in designing the theoretical methods, which suit the needs of the children. The judicial system should seek to establish a child-centered philosophy that creates a good child environment and develops an alliance with the children in order for the children to realize their personal growth as well as their role in the society. This will go a long way in improving the quality of life for the child offender, the neglected child as well as the entire community.

References

Andrews, C., & Marble, L. (2003). Changes to OJJDP’s Juvenile Accountability Program. Web.

Beyer, M. (2003). Best Practices in Juvenile Accountability: Overview. Web.

Introduction

The justice system in the United States is controlled and operated by the different courts located in different states in the country. The National Center for State Courts is an organization that keeps records on all courts cases decided and handled in all States. The organization initiated a project known as the Court Statistics Project that was to keep records of all different classes of cases decided by these courts. The project was to be used as an assessment of the legal system and how justice is dispensed in the different states in the United States (Groves, 2009).

Courts structure and caseload

Statistics show that the state of California has one of the highest court case filings, there are three different courts in California; these courts are spread around the 58 counties of California. California’s judicial system is made up of the Supreme Court, Courts of appeal, and the Superior courts. Filing in the California supreme courts was 10,512 in 2009 with 10,440 cases being disposed of. The California Courts of appeals handled over 25,000 filings with most cases composed of about 15,000 notices. The Courts of appeal disposed of some 26,000 cases with appeals without written opinion totaling 4,907.

The Superior courts of California handled nearly 9.5 million courts cases, most of these courts are spread out around the 58 districts in California. The Superior courts of California handle have jurisdiction over all types of cases including juvenile, domestic and civil cases (Cross, 1998).

The state of Texas has different courts with different jurisdictions; these courts are divided into appellate and trial courts. The appellate courts usually handle appeal cases and it is divided into the supreme, courts of appeals and courts of criminal appeals. The supreme court in the recent past has handled over 1,231 appeal cases with most of them coming in for review, however, there were few pending cases with these cases being on the decline recently (Nolan, 2005). The Texas courts of appeal handled around 8,000 cases while the criminal courts of appeal handled around 10,100 cases. Trail courts in Texas are divided into municipal, county, justice and district courts. These courts handled the bulk of cases in Texas, in the year 2009 they handled around 10.4 million cases.

The state of Utah court system is primarily divided into the justice, district, and juvenile courts. The Utah district courts usually handle the bulk of cases in the state since they are located in every district in Utah. The Utah district courts handle over 300, 000 court cases filed in the year 2009 with around 229,000 cases being disposed of. District courts of Utah have jurisdiction over many types of courts cases such as domestic cases, traffic offenses and civil cases (Groves, 2009). The justice court of Utah is the other court that handles many courts cases, in year 2009 it handled 492,000 traffic cases, 73,100 misdemeanor cases, and 19,543 small claims cases. The juvenile court of Utah has the jurisdiction of handling cases involving crimes perpetrated against or by juveniles, this court handled around 44,000 cases in 2009 (Nolan, 2005).

Courts statistics Comparison

The three states of California, Texas, and Utah have different justice systems; however some of their courts share certain similarities. For instance, the three states’ courts systems are divided into sections that handle different cases. The state of Texas courts is divided into appellate and trial courts, while California courts are divided into three with two courts handling appeals and the other courts handling trail cases. Hence California and Texas courts share the similarity of courts handling appeals while other courts have jurisdiction on all types of cases (Bornstein, 2008). The three states of California, Utah and Texas courts share the similarity of having courts located within the districts of these states.

The difference that exist between the three states courts is that, California handles most of the courts’ cases compared to Texas and Utah. The state of Texas handles quite a colossal number of court cases compared to Utah which handles the least number of cases among the three states. This disparity could be attributed to population differences in the three states (Groves, 2009).

Conclusion

From the statistics on court cases in the three states of Utah, California and Texas, we witness that the justice system in the three states does not differ a lot. The differences in the legal systems in the three states emanate from the laws and constitutions of the state governments. Except for California, the other two states have three courts for handling different classes of court cases (Nolan, 2005). From the statistics the state of California handles most of the cases while Texas comes in second and Utah handles the least courts among the three states.

References

Bornstein, B. (2008). Civil juries and civil justice: psychological and legal perspectives. Chicago, IL: John Wiley and Sons.

Cross, F., & Tiller, E. (1998). Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals. Yale Law Journal, 107(1), 21- 26.

Groves, R., & Cork, D. (2009). Ensuring the quality, credibility, and relevance of U.S. justice. Washington DC, WA: National Academies Press.

Nolan, L., & Wardle, L. (2005). Fundamental principles of family law. Boston, MA: Wm. S. Hein Publishing.

Introduction: Changes in the Supreme Court Composition and Direction

The changes in the U.S. political strategy have affected the judicial system considerably. Specifically, the U.S. Supreme Court has been experiencing changes recently. The overall tendency for its liberalization seems a welcome change of pace.

The Cases That Point to the Tendency for a Change: Analysis

The White v. Wheeler (2010) case points directly to the fact that the liberal social justice affects the choices made by the U.S. Supreme Court to a considerable degree (Bentley, 2007). Particularly, the decline of the death penalty as the final decision of the court can be deemed as a proof of the liberal attitudes to become the mainstream tendency in the U.S. Supreme Court.

The Obergefell v. Hodges (2015) case, in its turn, shows that the Supreme Court seems to be geared towards a more liberalist point of view (Redfield-Ortiz, 2011). Its composition, therefore, appears to be rather democratic. The case was resolved in favor of the plaintiff, i.e., it granted same-sex couples with the right to marry (Obergefell v. Hodges, 2010).

Last but definitely not least, the Arizona State Legislature v. Arizona (2010) case deserves to be brought up. It sheds some light on the positive ways in which the U.S. Supreme Court can use its power. Specifically, the means of addressing the problem of gerrymandering (Bradshaw, 2013) were outlined.

Principles of Judicial Review: Marbury v. Madison

Marbury v. Madison can be viewed as a graphic example of the expansion of the Supreme Court’s competencies in the United States. Particularly, the judge’s decision in the specified case ruled in favor of the Supreme Court by granting it the right for the judicial review of the rest of the legislative and executive agencies of the U.S. government. The specified decision affected the U.S. justice system to a considerable degree by reinforcing its power.

Analysis: The Development of the Supreme Court

One must admit that the direction in which the Supreme Court is going can be defined as liberal. While the changes occur at a very slow pace, they are still evident. Specifically, the fact that the rights of the people who have been oppressed for a considerable amount of time, including the homosexuals, are finally being recognized, deserves to be noted as a graphic proof. In addition, the recognition of the demand of the plaintiff to reconsider a specific instance of a death penalty by the Federal Court shows that the liberal moods are getting increasingly strong.

However, the tendency for the Supreme Court to retain its control over the key social and political changes occurring in the state as shown in the Arizona State Legislature v. Arizona case displays the possibility for it to return to the erroneous concept of judicial power as promoted by the decision on Marbury v. Madison. Therefore, the problem concerning the use of power by the Supreme Court needs to be looked into somewhat closer.

Conclusion: Effects of the Recent Changes in the Supreme Court

The cases analyzed above point clearly to the obvious trend for the reinforcement of the influence of the Supreme Court in the U.S. justice system. However, as far as the composition of the court is concerned, there is a slight tendency for the Federal Court to gear towards a more liberal point of view regarding the current topical social issues.

Reference List

Arizona State Legislature v. Arizona 13–1314. (2010). Web.

Bradshaw, S. (2013). Deciding where to draw the line: Compactness as a protection against gerrymandering in Missouri redistricting. Missouri Law Review, 78(3), 869–896.

Bentley, C. (2007). Constrained by the liberal tradition: Why the Supreme Court has not found positive rights in the American Constitution. Brigham Young University Law Review, 2007(6), 1721–1765.

Obergefell v. Hodges, 772 F. 3d 388 (2010). Web.

Redfield-Ortiz, K. (2011). Government by the people for the people? Representative democracy, direct democracy, and the unfinished struggle for gay civil rights. Arizona State Law Journal, 43(4), 1367–1416.

White v. Wheeler 14–1372. (2010). Web.

The juvenile justice system of the United States has been shaped by several court decisions. As a rule, both scholars and lawyers pay attention to the following ones: 1) In re Gault; 2) In re Winship, and 3) McKeiver v. Pennsylvania (Whitehead & Lab, 2010). The judicial decisions are important to the extent that they forced legislators and judicial officials to pay more attention to the civil rights of the juveniles, particularly the right to due legal process.

The famous In re Gault is the landmark decision of the U.S. Supreme Court that postulated that an underage person is eligible to the rights of due process, namely the right to obtain counsel, the right to be notified about the charges, and the right to encounter the witnesses¹. It should be noted that this case attracted so much attention because the police put a teenage boy into custody without notifying his parents and explaining what were the grounds for the arrest. It is difficult to underestimate the importance of this decision because it delineated the rights of a juvenile and forced the government to focus on the needs of this population. One should also speak about such Supreme Court cases as In re Winship². It changed the procedures for the evaluation of evidence and proving the guilt of the suspect ( Whitehead & Lab, 2010). The Supreme Court ruled that the guilt of an underage person has to be proved beyond reasonable doubt and not by a preponderance of the evidence as it was before. In other words, the court must present indisputable evidence in order to convict a juvenile. Additionally, it is important to mention McKeiver v. Pennsylvania³. The U.S. Supreme Court ruled that the juveniles were not eligible for a jury trial and that it was not a constitutional requirement. Despite the fact that it did not directly affect the juvenile justice system, it attracted the public’s attention to the fact that underage people are often put into underprivileged positions by modern courts.

Reference List

In re Gault. 387 U.S. 1 (1967). Web.

In re Winship. 397 U.S. 358 (1970). Web.

McKeiver v. Pennsylvania. 397 U.S. 358. (1971). Web.

Whitehead J. & Lab. S. (2010). Juvenile Justice, Sixth Edition. NY: Anderson.

Footnotes

1. Please refer to In re Gault. 387 U.S. 1 (1967)
2. In re Winship. 397 U.S. 358
3. McKeiver v. Pennsylvania

Introduction

The judicial system plays a very important role in the protection of the rights and freedoms of the individuals in a country. The courts play a major role in ensuring that the victims or potential victims of injustices can obtain effective remedies. The courts also ensure that the people who are suspected of having committed criminal offenses receive a fair trial, which conforms to international standards and the laws of the country in question. The decisions that the lawyers, judges, and court officials take usually have far-reaching effects on other people. The conduct of the members of the judiciary should therefore be good to enable them to administer justice effectively. To this end, the perception of the members of the public is very important. Moreover, members of the public should have a good perception of the members of the judiciary, as failure to do so may result in a decrease in confidence in the judicial system.

Accountability

Accountability is defined as the responsibility due to the relationship between two or more people where one person delegates the task whereas the other party is a recipient of the task (Prenzler, 2009, p. 9). The criminal justice system is part of the government as it ensures that the laws set are applied effectively. The criminal justice system can therefore be said to form part of the political system of the government and society. Therefore, just like the politicians and the government which is accountable to the citizens of the country, the judicial system is accountable to the citizens. The judicial system must ensure that the actions they take are for the general good of the members of society. Politicians are generally elected by the citizens of the country, however, they transfer the implementation of the laws they pass to the judicial system (Prenzler, 2009, p. 11).

Politicians are usually elected by the citizens; therefore, they are accountable to them. Should their actions fail to impress the citizens, then the citizens can hold them accountable. However, the members of the judiciary are not usually elected. Therefore the question of who they’re accountable to comes up. In some countries such as the US, the members of the judiciary are usually elected hence, the public is able to hold the judges accountable (Kleinig, 2008, p. 173). The members of the judicial system are not usually elected by the people except in very few countries such as the United States. The judicial system is also accountable to the politicians who are the ones who delegate the work to them.

Accountability of the members of the judiciary enables them to overcome some of the ethical issues, which they may be faced in the practice of their work. The ethical issues, which the members of the judiciary may be faced with, are usually varied and may have far-reaching effects on the other parties or the administration of justice.

Accountability mechanisms

To ensure that the various members of the judiciary are accountable there are various accountability mechanisms which are have been set up. This paper will discuss the different accountability mechanisms, as well as they, are used to maximize ethical conduct and prevent misconduct.

Conflict of interest and disqualification

Any member of the judiciary, including other holders of public office in most countries, is prohibited from improperly using official author for their own or family financial interest. The members of the judiciary are prohibited from engaging in activities that are not compatible with the functions and duties in the public office (Prenzler, 2009, p. 117).

In fact, in England, the judges are not supposed to have any other form of employment, which will give financial remuneration except being authors for which they can receive the royalties for their publications (PIMS, 2007, p. 14). Australia on the other hand specifies that the judges should not be directors of public companies. The judges should resign from their directorship positions after the appointment and thereafter they should not accept any directorship role in public companies. In addition, the judges should not be involved in any business or financial dealing, which may be perceived to exploit the judge’s judicial position (PIMS, 2007, p. 15).

The lack of involvement of the members of the judiciary in other companies for financial gain ensures that non-partisan judgment may be passed in case the members of that company or the company itself is brought to court to face different charges with the members of the judge overseeing the case.

Disclosure of assets

In the performance of their duties, the members of the judiciary are usually faced with different people, some of who are extremely wealthy. These people may try to use their wealth to influence the judgment passed by the courts to be favorable to them. These people may therefore attempt to bribe the court officials to pass biased judgment. However, public officials including members of the judiciary, of most countries are required to disclose their assets or liabilities. These officials are also required to disclose the assets of their spouses or even dependants (Prenzler, 2009, p. 18). This prevents the officials from accumulating their wealth by benefiting from the public offices through corruption.

Confidentiality of the information

The judges and other members of the judiciary are supposed to maintain the confidentiality of the information, which they have. The only exception is if the legislation of the country requires the officials to disclose the information or the performance of their duties or the needs for the application of justice the information must be disclosed (Prenzler, 2009, p. 18). The lawyers must also ensure the confidentiality of the information, which their client gives them. However, the lawyers may be faced with an ethical dilemma if their clients provide them with information that is crucial to the administration of justice that may make their client lose the case the lawyers are engaged in.

Political activity

The members of the judiciary are not supposed to engage in political activity that is outside the scope of their office. The members of the judiciary should not be engaged in the political activities, which may be deemed by the members of the public to impair the judgment made by the judges and hence lead to a decrease in the confidence of the judge by the members of the public (Prenzler, 2009, p 18). The political activity of the judges and other members of the judiciary is restricted, as they may be perceived to favor their political friends when the parties come before them in a court of law. However, in some countries such as the United States, the judges are elected by the members of the public. These judges usually engage in campaigns to solicit votes from the members of the public. The judges are therefore engaged in the political activities since they are affiliated with a certain political party to enable their candidacy to be pleasant to the public view (Baraud, 2007, p. 1).

Autonomy

In order for the judicial system to work effectively, it must be autonomous from the other arms of the government. The judicial system must be able to regulate itself and avoid external interference by the other arms of the government. The autonomy of the judicial system enables the judges the pass the judgment without having to be influenced by other external factors. The judgment made by the judge is purely made on his understanding of the law (International Commission of Jurists, 2007, p. 158). The lack of external interference enables the judges to pass important judgments, and hence make the parties involved in the case obtain justice.

The lawyers should also be autonomous and have a body, which regulates their activities. The regulatory body should be set by the lawyers themselves to prevent the lawyers from victimization by the other arms of the government who perceive the lawyers as not acting according to their wishes. This body is responsible for the drafting of the code of conduct of the lawyers in the specific jurisdiction. The UN basic principles ensure that all countries, which are members of the United Nations, ensure the autonomy of the bodies to help in promoting justice in the specific areas. With regard to regulation, the UN basic principles state that:

“Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation or in accordance with the national law and customs and recognized international standards and norms” (International Commission of Jurists, 2004).

The regulatory body is responsible for carrying out disciplinary measures against the lawyers. However, in undertaking the disciplinary measures, the regulatory bodies must ensure that they follow processes that conform to the basic principles of the United Nations (International Commission of Jurists, 2004, p. 68).

Conclusion

The accountability of judiciary is a very vital aspect in every democratic state. The members of the judiciary are prone to certain misconduct due to the nature of their practice. However, in ensuring proper accountability, proper measures must be taken to ensure that the members of the judiciary are not involved in any misconduct to improve the public confidence in the judicial system of the country.

References

Baraud, A. (2007). Voting for judges in the USA. Law report.

International Commission of Jurists. (2004). International principles on independence and accountability of judges lawyers and prosecutors: A practitioners guide. Geneva, ICJ. Web.

International Commission of Jurists. (2007). International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors: practitioners guide no. 1. Geneva, ICJ. Web.

Kleinig, J. (2008). Ethics and criminal justice: an introduction. London: Cambridge University Press. Web.

Political Information and Monitoring Service. (2007). Judicial accountability mechanisms: A resource document. Cape Town: Institute for Democracy in South Africa (IDASA). Web.

Prenzler, T. (2009). Ethics and Accountability in Criminal Justice: Towards a Universal Standard. Brisbane: Australian Academic Press. Web.

Path Through Courts

There are two distinct types of trials heard in courts, criminal law where the state persecutes an individual for committing a crime, and civil law which is a trial between two private parties. The large majority of over 90% of all cases in America which numbers in millions are heard by state courts that are the backbone of the nation’s judicial system. Criminal activity ranging from robbery to murder is heard by state courts along with civil matters such as injury, malpractice, or divorce.

Federal courts examine cases of interstate matters, national security, and matters of federal importance, such as the recent case against a Trump associate, Roger Stone which was heard in a U.S. District of Columbia court. Some matters of federal law or Constitutional importance can be examined in federal court even if seemingly minor ( “Dual court system,” n.d.).

The path through the federal system is much simpler. The case is examined in one of 94 district courts where a federal judge is present, with the U.S. attorneys being the primary prosecutors. Upon a decision, the case can be appealed, at which point it is transferred to the United State court of appeals. There are twelve federal circuit courts were appeals, with circuit court having multiple judges. Appeals are heard by a panel of three judges which makes the decision that cannot be overruled by any future panel (United States Department of Justice, n.d.).

At the state level, the case is heard at a state located in local jurisdictions and can have both criminal and civil hearings. Usually, there are a high variety of courts for specific legal matters, such as the family court, juvenile court, and others. Once decisions are made, a case is then appealed to the intermediate appellate court which is required to hear all cases. After this point, a decision can be appealed to the State Supreme Court if it is a relevant legal matter.

Some states lack an appellate court, and all appealed cases go to the State Supreme Court on a mandatory basis. However, commonly cases are handpicked beforehand, and it does not hold a trial or fact-finding, but rather a panel of judges reviews the matters of the case, making the final decision which is final and must be upheld in the state.

After the State Supreme Court or the Federal Circuit Court of Appeals, there is the final avenue of appeal, to the United States Supreme Court. The issue must commonly be of national importance and concerning federal law or the U.S. Constitution to be eligible for review by the Supreme Court judges. Parties must file a writ of certiorari, which is an official request to hear the appeal in the Supreme Court. Less than 1% of appeals are heard, and if the writ is not granted the last lower court opinion stands. However, if heard, the U.S. Supreme Court decision overrules any previous decisions and the judgment stands across all national and state-level laws (United States Department of Justice, n.d.).

Specialized Courts

Specialized courts are limited-jurisdiction courts that focus on specific crime problems such as drugs or domestic violence, also known as problem-solving courts. These are meant to address specific issues within the community and attempt to resolve solutions without burdening the criminal justice and penitentiary system.

These specialized courts utilize a non-adversarial approach, utilizing key professionals and a specific knowledge set which is meant to aid individuals as much as possible in rehabilitation, and often principles of restorative justice are used that emphasize restoration and making amends rather than severe punishment for crimes. Therefore, in drug courts, for example, substance abuse treatment is closely involved and allows for early identification and treatment of non-violent or non-habitual offenders. There is an ongoing interaction with the participants helping them to change their lives (Nolan, 2017).

Overall, there is evidence that drug courts are effective in preventing recidivism and drug relapses, both significant issues in traditional prison systems. Similarly, these programs have received acceptance from both offenders and the general public, with a significant number of participants continuing treatments in the 2-year follow-up period and generally lower recidivism for program completion after 5 years (DeVall, Gregory, & Harman, 2016). An expansive study across 8 states and 23 specialized courts found that drug courts produced statistically significant reductions in drug use and criminal behavior, with offenders more likely to achieve education or employment (Rossman, Roman, Zweig, Rempel & Lindquist, 2011).

While cost is a concern for running specialized courts, there is evidence suggesting that they are a cost-effective alternative to traditional courts. For example, an evaluation of local Drug Court in Portland, Oregon found an average taxpayer savings of $5,000 per offender with $1.5 million per year. The biggest concern is short-term costs which are overwhelming in terms of how many offenders the cost sees (the specialized approach is more costly per offender than regular courts).

However, in the long-term, the soft-dollar crime-reduction benefits are significant as well. Opportunities for rehabilitation and lower recidivism rates not only reduce expenses from crime but decreases the financial and administrative burden on the state judicial and penal system. Considering the average costs of incarceration per inmate are $34,000 annually, the saved money to taxpayers can be tremendous due to the benefits of specialized courts (Griller, 2011). Typically, problem-solving courts are one of the first to lose funding during budget pressures since they go beyond constitutionally required functions of the courts. However, they remain crucial to both long-term cost-saving and community well-being.

References

DeVall, K. E., Gregory, P. D., & Hartmann, D. J. (2016). Extending recidivism monitoring for drug courts. International Journal of Offender Therapy and Comparative Criminology, 61(1), 80–99. Web.

Dual court system. (n.d.). Web.

Griller, G. M. (2011). The quiet battle for problem-solving courts. Web.

Nolan, J. (2017). Drug courts in theory and in practice. New York, NY: Routledge.

Rossman, S. B., et al. (2011). The multi-site adult drug court evaluation: The impact of drug courts, volume 4. Web.

United States Department of Justice. (n.d.). Introduction to the federal court system. Web.

Introduction

The issue of fetal protection and the safety of pregnant mothers as provided in the Johnsons’ Control fetal policy is one that, not only draws particular attention to the parties that it seeks to address, but also sets into motion a wide variety of views and analysis when it comes to interpretation and application. In this case, however, the focus is on the main plaintiffs, as mentioned. The idea of protection of fertile women from exposure to lead is put in a way that raises both passive and active questions, especially on the part of the plaintiffs. This is also the case when it comes to the effects of the substance (Congress of the United States of America, 2004).

The Plaintiffs and Their Claims

Employers and manufactures association that deal with such industries as battery manufacture form the core of the defendants; especially since the policy directly points to them and their roles as far as employee protection is concerned.

The policy bars the involvement of what could be invaluable resource to their companies in the form of qualified personnel with the excuse of possible risks to their well being, without necessarily considering all the factors that go along with the production requirements. Furthermore, there is a requirement for transfer of pregnant women to safer departments in the organizations without revoking already existing benefits, or cutting their salaries irrespective of the kind of work they do in their new capacities. This is despite the financial implication such a move would have on the company, negative or otherwise according to Congress of the United States of America (2004). This is the case that is presented in this case study.

The plaintiffs include the men employees, who are subjected to same reproductive health risks but seem to be left out by the policy. This is an issue when considering gender inequalities, since labor requirements do not segregate but instead direct for equality and strict observation of the same. This may interest gender activists as well. Those mentioned include Mary Craig, Elsie Nason and Donald Penny who filed individual complaints. Plaintiffs not mentioned include employees that may feel aggravated by being termed as ‘infertile’ especially if their condition is medical rather than natural, or when they feel they still are capable of conceiving according to Luban (2001).

District’s Magistrate Ruling

The District’s Magistrate court ruled in favor of Johnsons Control, and in its view after considering experts’ opinions which could not agree on the difference in effects of exposure to lead of adults and fetuses indicated that there was nothing the policy could adopt that was in any way better than what it stated with respect to protection of the fetus from exposures to lead and the corresponding negative effects. In addition, the plaintiffs were not able to show what could have been done differently to avert the same. The firm therefore had the mandate to set up a policy that best served its interest as a business entity as was the case with the policy (Congress of the United States of America, 2004).

The Court of Appeals

The Court of Appeals stood by the District Magistrate’s ruling, stating that indeed Johnsons Control policy was of acceptable standards. There was no unquestionable claim by the plaintiffs via certain proof that they were violated in whatever way by the policy. It therefore was allowed to stand, and this was further reinforced by the BFOQ test taken by the court on the very policy which indicated that it passed the requirements. This ruling was unanimous, given that seven out of eleven judges were I its favor.

Some judges did not consider this ruling appropriate particularly with respect to the company’s BFOQ. They felt that this approach was not necessarily sufficient to require a ruling of that magnitude without giving the plaintiffs an opportunity to legally challenge the same BFOQ. They also expressed their view in the sense that the nature of the claims did not only encompass the business nature of the organization- high productivity efficiency-, but also other just as important spheres of the employee welfare such as their safety.

Supreme Court Decision to Take the Case

The apparent conflict between the appellate judges prompted the Supreme Court to intervene in this matter. On one side, the judges that ruled in favor of the policy felt that it provided the best representative interest the company could adopt, and had expert opinions and run tests that further strengthened their claim. On the other hand were dissenting judges that expressed their dissatisfaction in the court’s decision to pass the policy on the grounds that it allowed gross discrimination of certain aspects among the employees, thus asserting that the plaintiffs stood a chance if they were to contest the provisions (American Civil Liberties Union, 2007).

In its analysis, the Supreme Court sought to draw comparisons to other fetal policies that have been considered in the past so as to assist it in deliberation of Johnsons Control policy situation. Among them was the aviation policy, which was addressing fetal issues and pregnant women. The cases it examined ranged from treatment of pregnant flight assistance as they progressed with their pregnancy- whether or not it was appropriate for flight companies to lay them off with respect to care for the unborn and not the individual passengers.

Secondly, the case of aging flight engineers where some were considered too old to be performing some of their duties efficiently given the demanding nature of their job was also considered. Should their efficiency be compromised then the flights’ safety is automatically put to danger as noted by Luban (2001).

Supreme Court Conclusion

The court therefore came to the conclusion that for some reasons and in special cases, policies that make exceptions could be accepted. This is especially where the general welfare of the subject of business- operational, safety and third party protection are put to risk beyond any reasonable doubt and can be reflected as so are concerned Therefore, the court concluded that it is only acceptable for a firm’s policy to discriminate against a woman on her ability to conceive when such a move is without question to the best interest of the woman and the firm ethically, health wise and economically.

However, this is likely to impact the firm financially in settlements and setting up mechanisms to deal with contingencies that may arise from unprecedented occurrence of similar nature. The Supreme Court therefore reversed the ruling of the Court of Appeal for the Seventh Circuit (Center for Reproductive Rights, 2000).

References

American Civil Liberties Union. (2007). Coercive and Punitive Governmental Responses to Women’s Conduct during Pregnancy. Web.

Center for Reproductive Rights. (2000). Punishing Women for Their Behavior during Pregnancy: an Approach That Undermines Women’s Health and Children’s Interests. Web.

Congress of the United States of America. (2004). Unborn Victims of Violence Act of 2004. Web.

Luban, D. (2001). Law’s Blindfold: Conflict of Interest in the Professions. Oxford: Oxford University Press.