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10

A JAILHOUSE LAWYERS MANUAL

Ch. 2

an appellate court, territorial jurisdiction will depend on which court made the ruling that you are appealing (see Part B(1) of this Chapter). You should also confirm subject matter jurisdiction before beginning extensive research on the merits of your case. While most cases will not involve complicated jurisdictional issues, you must make sure you are filing your case in a court that has jurisdiction to hear it.

(b) Get an Overview of the Subject Matter

Legal research is hardest at the beginning, since you will need to understand the general area of law that covers your case before you focus on narrower issues. Background reading will help you understand how to apply the current law to your facts. Two particularly helpful sources for general overviews are legal encyclopedias, which provide concise summaries of the law, and treatises, which provide a more detailed analysis of a particular type of law. Prison libraries usually have the two most common legal encyclopedias, American Jurisprudence and Corpus Juris Secundum, as well as copies of treatises such as McCormick on Evidence, Johnson’s The Elements of Criminal Due Process, Kerper’s Introduction to the Criminal Justice System, and Kerper’s Legal Rights of the Convicted. As you read these background materials, be sure to take notes about any cases, legislation, or constitutional provisions that seem like they may help your case. To find a subject in an encyclopedia or treatise, use either the “index” (usually found in the back of a book; if you are talking about more than one index, the plural is “indices”) or the “table of contents” (usually found in the beginning of a book). Both types of research are fully described later in this Chapter.

(c) Find Relevant Legislation

After learning the basics of a subject area, you should turn to the main sources of law—legislation and cases. Research can take a long time, so remember to take good notes about the sources you read and to follow the outline this Chapter provides.

You should start your research by reading legislation. Legislation includes constitutions, federal and state statutes, and supporting governmental enactments, such as regulations and administrative decisions. Constitutions and statutes are generally broken down into parts called articles, sections (the § symbol means “section”), and clauses. Regulations issued by state or federal agencies, such as the New York Department of Correctional Services or the U.S. Bureau of Prisons, are an important form of legislation and should be checked during your research. Each form of legislation will now be discussed in greater detail.

(i)

Federal Constitution

Constitutions create the structure of government and define individual rights and liberties. They are the most important authorities, and the Constitution of the United States is the supreme law of the United States. Any federal case or statute, or any state constitution, case, or statute that violates the U.S. Constitution is “unconstitutional,” which means it is completely invalid. Thus, the Constitution should be your first source to research your case, and you should determine if a constitutional provision applies to your case at the beginning of your research. The first ten amendments to the Constitution (known as the “Bill of Rights”), along with the Fourteenth Amendment, are the most important parts of the Constitution for criminal defendants and prisoners. They contain guarantees of personal rights and liberties. Of particular interest are the First Amendment (freedom of speech), the Fourth Amendment (search and seizure), the Fifth Amendment (grand jury indictment, double jeopardy, self-incrimination, and due process), the Sixth Amendment (jury trials for crimes and procedural rights), and the Eighth Amendment (excessive bail and cruel and unusual punishment). The Fourteenth Amendment is also very important because it prohibits state governments from depriving you of life, liberty, or property without due process of law (i.e., certain legal procedures), and it guarantees the equal protection of law. Similar rights are guaranteed to you from the federal government through the Fifth Amendment. The text of the Constitution can be found in each of the first twenty-eight volumes of the United States Code Annotated (“U.S.C.A.”).

(ii)

State Constitutions

Each state has its own constitution. The text of the New York State Constitution appears in the first few volumes of McKinney’s Consolidated Laws of New York Annotated (“McKinney’s”). Each state’s constitution is supreme over all other laws of that state, including state statutes passed by the legislature, and cases that state courts decide. But, state constitutions are not supreme over federal law (federal law includes the U.S. Constitution and laws passed by the U.S. Congress). State constitutions apply only to state law. While many provisions of state constitutions are similar to provisions found in the U.S. Constitution, your state

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