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Due Process of Law
The 5th Amendment says: No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 14th Amendment says: No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Due Process of Law Due Process allows that the government and
court systems gives everyone a fair and equal amount of justice.
There are two types of due process: substantive and procedural.
Procedural due process is how the government handles due process (how it protects your rights).
Substantive due process is what the government does (the policies that protects rights).
Much of the 14th amendment’s due process clause protects the rights first established in the Bill of Rights.
Power of the Police
The power of the police is one of the powers given to the states.
The police is in charge of protecting the public health, safety, morals, and general welfare.
However, sometimes police power can infringe on civil rights. A balance must be met between police power and civil rights.
What constitutes proper search and seizure and violation of civil rights? (drunk driving tests, etc.)
Search warrants protect the police from any lawsuit actions.
While the police serve a proper public service, they cannot violate 14th Amendment rights.
Right toPrivacy
While there is no right to privacy ever listed in the Constitution, it has been suggested by the 14th Amendment and upheld by the Supreme Court in several decisions.
Roe vs Wade, a case that allowed abortions, was a major case in this area.
Many other cases about abortion and women’s reproductive issues have surfaced.
Slavery and Involuntary Servitude
The 13th Amendment says: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
While slavery has not existed since 1865, involuntary servitude has with blackmail, threats, causing harm, or forcing someone to do something illegal.
The Supreme Court has ruled that the draft doesn’t count as involuntary servitude.
The Second Amendment The Second Amendment allows us to own a gun
and form militias. The goal was to allow settlers to protect
themselves and because people hunted for food. In the 21st Century, many advocates claim that
guns are harmful. Gun control laws are very controversial. Can guns be limited in certain areas? Can certain guns be banned? So far, the Supreme Court has ruled that the
Second Amendment doesn’t apply to due process.
The Third Amendment
The Third Amendment forbids troops from taking over your home in peace.
This goes back to the Quartering Act the British passed and has never been an issue.
Soldiers did occupy homes in frontier wars and the Civil War, but again, no home has ever been taken over in a time of peace.
Question Time
1. What does due process mean?
2. What are the two types of due process? How are they different?
3. What are police in charge of?
4. Is there a right to privacy?
5. What issues do we see today regarding the Second Amendment?
The Fourth Amendment
The Fourth Amendment says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This amendment was created to prevent the British “writs of assistance” which allowed blanket search warrants.
The writs were permanent and transferrable and were seen as unfair by the colonists.
The Fourth Amendment Police cannot search for
evidence or seize a person unless there is a warrant and probable cause.
Police do not always need a warrant.
If someone is doing something in plan sight, the police can take someone into custody.
Fourth Amendment issues can be touchy because of where does probable cause end and police abuse begin?
The Fourth Amendment When an officer is making an arrest, he doesn’t need a
warrant to search because probable cause has been given. Running/speeding from a cop gives probable cause. Suspicious behavior gives probable cause. A cop does NOT need a warrant for a car, boat, plane,
vehicle if probable cause is given and there is enough suspicion that the vehicle has been involved in an illegal activity.
California vs Acevedo has said that cops do NOT need a warrant to search anything in a vehicle that the cop believes holds evidence to a crime.
Cops also do not need a warrant to use a crime dog to sniff a car for narcotics or explosives, even if that is not why the car was originally stopped.
The Fourth Amendment
The exclusionary rule: evidence taken from a crime scene by an illegal action cannot be used or admitted in a court of law.
Mapp vs Ohio: Cops went into find a gambling ring but found obscene materials. Supreme Court ruled that you can only charge someone with a crime based on what warrant says. Any other evidence is considered tainted and inadmissible.
Cops acting within the scope of a warrant, even if stuff may be collected badly, is still ok because the cop acted in good faith.
The Fourth Amendment Federal drug testing is ok. Supreme Court has also upheld school
districts that mandate drug testing for sports.
Wiretapping in a criminal case is ok as long as there is a warrant.
However, the Patriot Act says that if a suspect is suspected of being a terrorist, than it is ok to wiretap without a warrant.
Question Time
6. Define what constitutes as probable cause.
7. When do police not have to have a warrant to search a vehicle?
8. What is the exclusionary rule?
9. How has the Patriot Act changed things?
Rights of the Accused
People who are accused have certain rights. All people arrested must be taken before a
court to understand why they are being arrested. They cannot be held in jail without reason. (habeas corpus)
Lincoln, FDR, and G. W. Bush suspended write of habeas corpus, however, in time of war.
Habeas Corpus goes back to the Magna Carta. Bills of attainder, a legislative act that gives
punishment without trial, are also illegal. The Founding Fathers banned bills of attainder
because Parliament had these laws passed on us.
Rights of the Accused
It is also illegal to charge someone of a crime ex post facto (passed after the fact).
Grand juries are called for someone who has committed a very serious crime.
16-23 people form a federal grand jury. If at least 12 people approve, the trial goes on to an indictment.
An indictment is a formal complaint that a law is broken. Indictments charge that crimes have been committed.
If the grand jury believes that there is enough evidence to proceed, it will go to trial.
Grand juries protect people from active prosecutors because it is hard to get a case through them.
Rights of the Accused The Fifth Amendment protects
against double jeopardy—charged with the same crime twice.
You can be tried for a federal and a state crime for the same act.
A single act can also result in different crimes.
Sexual predators can be held in jail after their sentence is over, because it is confinement and not a punishment.
Rights of the Accused
The Sixth Amendment allows for a speedy and public trial.
The Speedy Trial Act of 1974 states that the time of the person’s arrest and beginning of the federal trial cannot be more than 100 days unless someone is sick or mental tests must be made.
The trials cannot be too speedy or too public. All trials are to be held in public and not in
secrecy. Lots of controversy on how much the media can
and should be involved in a trial.
Rights of the Accused
Sixth Amendment calls for trial by jury. The jury must be made up of people who live in
the area. Defense attorneys can ask for a “change in
venue” if they feel that the present locality will not be fair.
If a defendant waives their right to a trial by jury, a bench trial is called.
In a bench trial, the judge alone hears the case. Juries must have 12 members. Nobody can be kept off of a jury for any reason
except conflicting measures.
Rights of the Accused
Every defendant has the right to an attorney.
The Sixth Amendment calls for having an adequate defense so that he has the opportunity to prove himself innocent.
Supreme Court cases like Escobedo vs Illinois and Gideon vs Wainwright show that a defense lawyer must be present during questioning and that the court must appoint a lawyer if the defendant can’t afford one.
Rights of the Accused
The Fifth Amendment also protects people from self incrimination.
Defendants cannot be forced to testify against themselves.
The burden on proof is on the prosecution to show that the defendant is guilty.
The courts can decide when “pleading the fifth” is appropriate. Used inappropriately, it will be contempt of court.
One can plead the fifth only for themselves.
Rights of the Accused
Pleading the fifth doesn’t exempt you from being fingerprinted, take a sobriety test, a handwritten sample, appear in a police lineup, etc.
The Fifth Amendment also prevents questions from being taken by a prisoner under duress (torture).
Confessions cannot be obtained without a lawyer present.
Miranda vs Arizona—Miranda Rights.
Question Time
10. Why is it important to protect the rights of the accused?
11. Why do we have trials by jury?
12. Why is it important to have your Miranda Rights read to you?
Punishment The Eight Amendment prohibits
excessive bail. Bail is a sum of money that
someone posts to free someone from jail. This money is a guarantee that the defendant will appear in court.
Bail is used to allow someone to prepare for a trial outside of court and to keep an innocent person locked up.
Not everyone is entitled to bail. Bail is set depending on the
severity of the crime and the reputation of the defendant. (own on recognizance)
Preventive detention can be used in federal crimes if it is believed that the person will commit another crime before the trial.
Punishment
The Eight Amendment also forbids cruel and unusual punishment.
Cruel and unusual punishment, as established by the courts, are things like torture, beatings, crucifixion, draw and quartering, burning, and public humiliation.
Supreme Court has ruled that the “3 Strikes” rule is not cruel.
Supreme Court has ruled that being constantly chained at ankle and wrist, denying medical care, and treating an addiction as a crime (and not an illness) is cruel.
Punishment Is capital punishment cruel and unusual? In Furman vs. Georgia, the Supreme Court ruled that capital
punishment rules were unconstitutional, but only because it gave too much power in the hands of judges and juries to decide and it appeared that mostly minorities and poor people were executed.
38 states have mandatory death penalty laws for things like killing a cop and murder during a rape or other violent crime.
Other states have a two-stage trial in capital cases. One to determine guilt and another to determine sentence.
Woodson vs NC said that mandatory death penalty laws were unconstitutional because they were too rigid and harsh but that two-stage ones are ok.
Other cases have determined that it is unconstitutional to execute someone if they are mentally ill or committed their crimes before they were 18 years old.
So basically, the Supreme Court has ruled that most uses of the death penalty are constitutional.
Treason
The only crime defined in the Constitution is treason.
Treason is a crime committed against the government of the US.
The Constitution defines treason as levying war against the US or giving aid and comfort to our enemies.
Nobody can be convicted of treason unless there are two witnesses present.
The death penalty is the maximum penalty for treason, however nobody has ever been executed for it.
John Brown is the only person executed for treason against a state (VA).
Question Time
13. What is the reason for bail?
14. What is the debate regarding the 8th Amendment and Capital Punishment (death penalty)?
15. What is treason?
