Federal Government 2305—Unit 8 lecture notes—Civil Liberties
Unit 8--Civil Liberties
Issue: Should subversive, radical or extremist groups be protected by the first
amendment?
First Amendment Rights and the Right of Privacy
 Civil Liberties- Rights and freedoms that we have protecting us from
government ex. Bill of rights and the first ten amendments.
 Three Positions on Civil Liberties:
1. Balanced position- attempt to balance competing and conflicting
interests. (order, stability, privacy, individual rights)—used by the courts in
most civil liberties cases, with the exception of 1st Amendment cases.
2. Preferred position- Bill of rights protections take precedence and top
priority over other interests- although they are not absolute. Government
must have a very good reason for overriding bill of rights. Courts usually
use the preferred position for 1st Amendment rights.
3. Absolutist position- No limits on bill of rights freedoms and protections
.
 Bill of Rights—the first 10 amendments to the US constitution, added to fulfill a
promise made by the supporters to gain ratification of the US constitution in
1787-89. They contain the vast majority of our civil liberties (although they are
NOT a complete list.)
 ACLU (American Civil Liberties Union)- established in 1920 to protect the rights
of minority and radical groups’ rights.
 Free exercise clause—found in the first amendment—designed to protect the
freedom to believe and the freedom to worship.
 Conscientious objector -someone wants to be exempt from the draft for
religious reasons.
 Clear & present danger rule- can punish or outlaw speech only if it causes
substantive evils (rioting, destruction of property, lawlessness.) So imminent
and immediate that no opportunity exists for discussion. Government must
prove speech presents immediate danger.
 Libel/slander –to falsely and maliciously destroy someone’s reputation.
Slander is the spoken word and libel is the written word.
 No prior restraint rule –the guideline established by the US Supreme Court
when ruling on freedom of speech cases. There is no advance censorship of
the press by government.
 Fairness Doctrine –the FCC created the fairness doctrine. It required the
media—TV and radio must allow equal time to both sides of an argument.
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Discontinued in 1986 because of cable television and a diversity of viewpoints
now available.
 Pentagon Papers case—US Supreme Court ruled that the Nixon administration
could not stop the NY Times and other media from printing excerpts from the
stolen copies of the top secret “Pentagon Papers” (a top secret government
study of the US involvement in the Vietnam War) because the government
had not proved irreparable harm to national security.
 Gag order –issued by a trial judge as a last resort to protect a defendant’s right
to a fair trial (guaranteed by the 6th Amendment) from prejudicial media
coverage.
 Shield law –laws that give a reporter the legal right to refuse to divulge the
identity of a confidential source (to the police, a grand jury, or in the
courtroom)
 Obscenity & Miller test—test developed by the Burger Court in 1973 defining
obscenity—it is the current test still used to determine if material is obscene
(or pornographic) and thus, not protected by the constitution. Three key
questions are asked to make this determination.
 Fighting words –words that either incite a breach of peace or are designed to
inflict emotional injury or harm (ex: racial slurs). These are NOT protected by
the 1st Amendment because they have no value.
 Sodomy laws –laws that make deviant sexual behavior illegal.
 Selective incorporation –the gradual application of the Bill of Rights freedoms
and rights to the states (they originally only applied to and protected the
people from the national government.)
 Captive Audience rule- if the advertising is aimed at people who cannot get up
and leave then it can be restricted and regulated.
FIRST AMENDMENT FREEDOMS
Amendment I
“CONGRESS SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION, OR PROHIBITING THE
FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM
OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE
PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION
THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.”
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
First Amendment freedoms can be described as protecting our FREEDOM OF
EXPRESSION—all types—oral, written, behavioral, organizational, thought,
etc.

The US Supreme Court has ruled that these are fundamental rights to
democracy and will be given preference or added protection. They assume
that all government restrictions on a 1st Amendment right are unconstitutional
and the government must make a strong case why the restrictions should be
upheld.

In addition to the six specifically mentioned 1st Amendment rights…
1. free exercise of religion
2. establishment clause
3. speech
4. press
5. assembly
6. petition,

the US Supreme Court has ruled that there are two implied rights:
1. the right to association
2. the right to demonstrate.
I. The establishment of religion clause
“Congress shall make no law respecting the establishment of religion”
a. Government cannot establish a national religion.
b. No official church
c. No government financial support of any religion or church.

The US Supreme Court interpreted this clause as requiring the
“Separation of church and state”—government should not meddle in
religious and church affairs and church should not meddle in governmental
affairs. (These words came from a letter Jefferson wrote to a group of
Connecticut Baptists in the first decade of the 1800s.)

The US Supreme Court also said the establishment clause requires
government neutrality or no government favoritism.

Supreme Court established the Lemon Test to decide establishment
clause cases.
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
The Lemon Test
Courts must ask three questions:
1. Does that law reflect a secular legislative purpose?
2. Does that law/government program or policy neither advance or inhibit
religion?
3. Does it avoid excessive entanglement with religion including sponsorship,
financial support, and active involvement in religion activities?
ESTABLISHMENT CLAUSE CASES USING LEMON TEST
ALLOWED
- Tax dollars for nativity scene ok because
it is a historical event not just religious—
however—can’t just be a nativity scene by
itself—it is religious in nature—must have
secular Christmas decorations included,
also…perhaps a Jewish menorah to
celebrate Hanukah and signs “Liberty”
“Equality”, etc.—this shows a diversity of
messages and not a endorsement of
Christianity.
-Voluntary (or silent) prayers by individual
students (before lunch or an exam!)
- Prayers ok in Congress, State,
Legislature, Government meetings—
because they are adults and have already
formed their religious views & not easily
intimidated, and graduation ceremonies, if
supported by the majority and a student
says prayer.
- Busing, text books, testing services -Tax exemptions for churches—must apply
to ALL churches & faiths and even the
American Atheist Society
-Sunday closing laws
NOT ALLOWED
- No organized prayers in public schools
- No organized Bible reading
- No required posting of Ten commandments in
public classrooms
- No banning of evolution
- No regulated teaching of creationism because
it is a religious theory
- No “equal time laws”—creationism is a
religious theory and evolution is a scientific
theory—one belongs in a science class and the
other doesn’t
- No moment of silence law - for schools
because the state law mentioned “prayer” -(lower courts seem to be upholding these laws
now)
________________________________________________________________________
II. Free Exercise Clause
“Congress shall make no law abridging the freedom” of religion.
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This was intended to do two things:
1. Protect the freedom to believe according to our conscience ( this is absolute;
there can be no restrictions on what you believe, no matter how “weird”)
2. Protect the freedom to worship (this is NOT absolute because behavior can
pose a danger to the community or other individuals)
Protected or not by the free exercise clause.
AREAS PROTECTED
AREAS NOT PROTECTED
- Jehovah Witnesses believe in no blood - Christian Scientists- wants to be
transfusions. (If they are adults,
exempt from mandatory vaccinations.
allowed to die based on religious beliefs)
(Too risky for rest of community)
- Amish believes children should not go - Snake Handling (Danger to
to school after eighth grade. (Necessary congregation)—can be banned
--skills to Amish way of life must be
- Child patients have no right to refuse
learned)
medical treatment for religious reasons.
Because not mature enough to make this
- Quakers who don’t believe in killing
decision.
even in war. Want to be exempt from a
- Mormons & polygamy- Wanted more
military draft. (Conscientious objector)
than one wife at the same time. (Too far
- Santeria- Sacrifice animals primarily
outside the normal moral mainstream)
chickens. (Did not endanger anyone and
was more religion)
- Navajo used peyote-an hallucinogenic
drug-- (legal--only during ceremonies)
- Rastafarians-- use marijuana during
ceremonies
- Saluting the flag-Jehovah Witnesses
don’t believe in idolatry or saluting the flag.
(Not a danger to anyone & not a measure
of one’s patriotism)
___________________________________________________________________
III. Freedom of Speech
 How the courts deal with speech depends on which of the 4 types you are
engaging in.
Types of speech
1. Political Speech-Most protected because it has to do with government policy,
elections, campaigns, and debating political ideas.
 the Clear and Present Danger Rule applies here. Can punish or outlaw
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
speech only if it causes substantive evils (rioting, destruction of property,
lawlessness) that are so imminent and immediate that no opportunity exists
for discussion. Government must prove speech presents an immediate
danger.
 Judge considers:
What was said? (the actual words)
How it was said? (the tone used)
Intent of the speaker? (the words, tone, the speaker’s prior speeches,
statements, etc.)
Where was it said? (was a deliberately confrontational location chosen to
perhaps incite trouble?)
 Circumstances:
How is government attempting to regulate speech?
Why is government attempting to regulate speech?
2. Pure- Speech between family friends and neighbors. Doesn’t deal with public
policy & because it’s personal, private, and intimate, government has no business
regulating it.
3. Commercial - advertising of any kind. It must be truthful --can’t be deliberately
deceptive or it’s not protected. Also, the courts allow it to be regulated by the
captive audience rule- if the advertising is aimed at people who cannot get up
and leave then it can be restricted and regulated.
4. Symbolic- Actions that express an idea. Examples include: draft card burning,
wearing armband, or peace symbol, burning the American flag, wearing a t-shirt
or clothing with a political slogan or symbol.
 The courts have established 2 rules:
1. Did it interfere with a government program? Yes? Then not
protected.
2. Does the speech interfere with the operation where it takes place? If
yes, then not protected.
___________________________________________________________________
IV. Freedom of Press
This includes newspapers, magazines, periodicals, journals, pamphlets, brochures,
and the electronic media: television, radio, movies, videos, and music, the Internet.
The courts established the No Prior Restraint Rule- Government cannot stop the
presses; no advance censoring of the news.
Three minor exceptions to the “no prior restraint” rule:
1.
National Security- must cause “irreparable harm (Pentagon Papers
case).
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
o (Critical report of several leaders, about the Vietnam War.) NY Times
won because Nixon administration did NOT prove irreparable harm.
o (Student for his doctorate wrote how to build an atomic bomb. Was
going to sell it to a magazine. Magazine won because material was
already available in an uncondensed form on library shelves.
2. Defendants right to a fair trial being harmed. Then courts can issue a
gag order, limiting what can be said. Also it’s a last resort.
3. Vital national interests are harmed. This could be copyright information, or
economic or national trade secrets.
Not protected by freedom of Press:
1. Reporters confidential sources. Unless you live in a state with a shield law.
Allows reporter to keep the source secret.
2. Libel/Slander-falsely and maliciously destroying their reputation. Has to be false
and be malicious.
3. Pornography- Obscenity. Is not protected by the freedom of press. Not all
nudity is obscene. Can’t be defined. Courts use the Miller test since 1973.
A. 1957--Roth case: Dominant theme appeals to “prurient interest” and is
utterly without redeeming social importance” (trying to excite you
sexually)
B. 1966--Fanny Hill case: Dominant theme had to appeal to “prurient
interest” and was utterly without “redeeming social value.”
C. Miller Test-Miller v. California 1973
Miller Test-Miller v. California (1973)
o
Courts must now ask three questions
1. Does the average person applying contemporary community standers find that
the work taken as a whole appeals to prurient interest?
2. Does the work depict in a patently offensive way sexual conduct defined
and prohibited by state law?
3. Whether the work as a whole lacks serious literary artistic political or scientific
value.
4.
Fighting words- well-defined and narrowly limited classes of speech, which by
their very nature inflict injury or tend to incite an immediate breach of peace.
Racial slur.
5. Sedition & Subversion. Speech and press encouraging the use of force in
violation of the laws producing imminent lawless action
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Electronic Media can be banned for obscenity reasons. (TV, radio, and films music,
Internet.)
But the business raided must provide a quick judicial hearing.
Movies are rated (R, PG-13, PG, G)
Television shows are now rated
Music products are not consistently rated. Some record companies voluntarily put
warning stickers on some products that have explicit lyrics.
The Internet: Congress has had a difficult time trying to protect children from Internet
pornography. Two laws have been ruled unconstitutional by the U.S. Supreme Court. They
violated the 1st Amendment because, according to the Court, they were vague and
overbroad, thus limiting legitimate non-pornographic material to adults.
________________________________________________________________________
V. Freedom to Assemble
o Must be peaceful to be protected
o No right to assemble on private property without the consent of the property owner.
o Three restrictions on right to assemble:
1. Time restrictions- used to prevent disturbing other people, and teen curfew
backed up by statistic evidence showing crimes done by teens
2. Place restrictions- not where quiet is necessary to operate.
3. Management Restrictions- Willie Nelson concert near 4th of July in
Austin. To gain the concert permit, he had to show he could provide
restrooms, parking, and medical personnel for usual drug overdoses.
___________________________________________________________________
VI. Right to Petition government for redress of grievances.
You have the right to gripe and complain to government. This protects lobbyists,
interest groups, and citizens.
Implied Rights:
1. Right of Association-- constitutional right to belong to organize a club of your
choice -- no matter how radical or unpopular (KKK, Nazis, Communists, Gay
Liberation)
2. Right to Demonstrate--constitutional right to march, demonstrate, picket, have
a sit-in.
This follows the same rules and regulations as freedom of assembly. Also
allows for time, place, and management restrictions.
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___________________________________________________________________
Right to Privacy
o This is not specifically mentioned in the US Constitution. It is based primarily on
amendment IX.
Amendment 9
“The enumeration in the constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.”
This has been interpreted by the US Supreme Court to mean that the listing in
the Bill of Rights should not be interpreted to mean that we don’t have other
rights not listed.
Bill of Rights should not be construed (interpreted) to be a complete list of our
rights.
Right to privacy was established in 1965. And is based on a thought that certain
areas of your life are so personal and private that the government has no business
meddling in.
Five areas protected:
1. Right to purchase and use birth control.
2. Your right not to have your phone wiretapped without a warrant. Cell
Phones and cordless phones are not protected because their conversations
transmitted over the airwaves, which are public.
3. Right to Posses obscene material in the privacy of your home/apartment.
Does not include child pornography.
4. Abortion rights- Roe v. Wade. Established trimester framework.
o No restrictions during first trimester (months 1-3).
o Health restrictions are permissible in second trimester.
o Only in trimester three can they be totally banned. Courts can pass
parental notification or permission laws if there is a judicial bypass.
(Texas has a parental notification law as of 2001.)
Webster-decision (1989) says states may place “reasonable
restrictions” on abortion. What are reasonable restrictions? That’s
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
up to the judges to decide.
5. Sexual practices between two consenting adults (even deviant). As of June
2003,
sodomy laws are now unconstitutional –Texas v. Lawrence ruled the Texas
sodomy statute unconstitutional—which applied to gays, violated the constitutional
right to privacy. (Sodomy laws are laws that make illegal certain type of certain
sexual behavior.
o Definition of sodomy: “Carnal copulation with a member of the same sex, or
with an animal, or unnatural copulation with a member of the opposite sex.
(Texas law did does not apply to heterosexual sex.)
o One thing not protected by the right to privacy
1. Drug Possession and use.
NORML- National Organization for the Reform of Marijuana Laws—organization
that has lobbied to get possession and use of small amounts of marijuana
protected by the constitutional right to privacy.
o Selective Incorporation
This is the process of gradually applying the Bill of Rights to the states. Originally, the
Bill of Rights only applied to the national government and only protected us from the
national government (Barron v. Baltimore—1833). Beginning in 1925 (Gitlow v. NY) with
freedom of speech, the US Supreme Court began to gradually extend the Bill of Rights to
the states under the 14th Amendment’s due process clause, establishing that certain
personal rights and liberties are so fundamental that they are protected by the due process
clause of the 14th Amendment from impairment by the states. All in the Bill of Rights don’t
apply. The right to bear arms (2nd Amendment) doesn’t and grand juries requirement (5 th
Amendment) doesn’t.
Right to Die
This was established in the Cruzan case (1990)
The U.S. Supreme Court ruled in its first right to die case that a competent adult had the
constitutional right to die based on the 14th Amendment’s “liberty” in the due process
clause. However, states may regulate this process and establish guidelines.
14th Amendment due process clause
“…nor shall any State deprive any person of life, liberty, or property, without due
process of law;”
The Nancy Cruzan Story
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
Nancy Cruzan was a young woman in her 20s who was in a horrible car accident. Although
she survived, her brain was deprived of oxygen long enough before medics arrived at the
scene that she suffered irreversible brain damage. She ended up in a persistent vegetative
state on life support. Her parents and family, after consulting with doctors and being told
their was no hope of any improvement, asked that life support be disconnected because
she would not want to be kept alive this way. The hospital refused and the family went to
court. It went all the way to the Missouri Supreme Court, which ruled that since Nancy
Cruzan had no living will or written documentation indicating her wishes, the state of
Missouri, which required written documentation, could not honor the parents’ request. The
family appealed to the U.S. Supreme Court. This was the U.S. Supreme Court’s first right
to die case, thus creating a legal precedent when the ruling was handed down. Although
the Supreme Court rule (and established) that a competent adult had a constitutional right
to die, they also ruled that states may regulate this practice and since Missouri required
written documentation and Nancy Cruzan had none (what 20+ year old does??), the state
could legally deny the parents’ request. A few months later several of Nancy’s coworkers
came forward and said she had also expressed similar wishes to them—which she did not
want to be kept alive as a vegetable. As a result, the state of Missouri finally decided that
was sufficient “proof” of Nancy Cruzan’s wishes and life support was disconnected and she
died shortly thereafter. Moral of this story: have a living will no matter what your age!
_____________________________________________________________________
Criminal Justice Rights
Most of these rights and protections are found in the Bill of Rights in Amendments 4-8.
Issue: Are criminals overprotected?
AMENDMENT IV (Search and Seizure)
“THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE ISOLATED, 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.”
4th Amendment Protections
The US Supreme Court has interpreted the 4th Amendment’s “no unreasonable search
and seizure” to require one of the following to be present for a search to be legal:
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
1. A valid search warrant listing the address to be searched and the items to be
seized.
2. Probable cause—something about the suspect’s behavior or appearance that
indicates a crime is about to be committed, is being committed, or will be committed.
3. A limited search of the suspect’s clothing, body, and immediate surroundings can
be conducted in conjunction with an arrest to insure that:
o Evidence will not be destroyed
o A weapon will not be used against the law enforcement officer.
The US Supreme Court established the exclusionary rule in 1914 for federal courts and
applied it to the state courts in 1961. The exclusionary rule stipulates that illegally seized
evidence cannot be used in court. It must be thrown out. This is to deter illegal searches
and seizures and gives teeth to the 4th Amendment.
o Supporters argue it deters illegal searches and seizures and is an incentive for
over zealous cops to act legally and professionally. They also argue that it
protects all of us from “police state tactics.”
o Critics argue that evidence that can lead to an indictment or a conviction is
thrown out, and a guilty suspect is either not indicted or not convicted. The end
result: that suspect is out on the streets committing more crimes and endangering
society. They also argue that this loophole encourages more crime. Police may
have made an honest mistake in conducting the search—why should society
suffer by having that suspect released?
_____________________________________________________________________
AMENDMENT V (due process & others)
“NO PERSONS SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE
INFAMOUS CRIME UNLESS ON A PRESENTMENT OR INDICTMENT OF A
GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL ORDERS
OR IN THE MILITIA WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC
DANGER NOR SHALL ANYPERSON BE SUBJECT FOR THE SAME OFFENCE
TO BE TWICE PUT IN JEOPARDY OFLIFE OR LIMB; NOR SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF,
NOR BE DEPRIVED OF LIFE LIBERTY OR PROPERTY WITHOUT DUE
PROCESS OF LAW NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC
USE, WITHOUT JUST COMPENSATION.”
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
5th Amendment Protections/Rights:
1. grand jury indictment-at the federal level and in most states, a grand jury must
indict (charge) a suspect with a felony crime for them to be taken to trial. This
protects suspects from trumped up, politically motivated charges being brought by
the district attorney (who is elected and may be under tremendous pressure to bring
a suspect—any suspect—to trial) or the police. It takes 9 of 12 grand jurors voting
that there is sufficient evidence to hand down an indictment (a formal charge.)
Any vote less than that leads to a “no bill”—no charges filed.
2. no double jeopardy—a person cannot be tried for the same crime twice (unless
they commit it a second time) even if, after an acquittal, evidence is uncovered
indicating their guilt. This prevents the government from bringing a suspect to trial
again and again until they finally gain a conviction.
3. right to remain silent (pleading the 5th)—a suspect or defendant has the right to
remain silent and not answer questions, and has the right not to take the stand in
their trial. This is done on the grounds that you might incriminate yourself. The
purpose was to prevent coerced confessions and the use of the “third degree”—
physical or psychological torture/pressure/coercion.
4. due process—a person cannot be executed, be jailed or imprisoned, or have
property confiscated without due process—fair procedures followed. The courts
have interpreted due process to require:
a.
one phone call when taken into custody
b.
the reading to a suspect of his or her Miranda rights (described below).
Miranda rights
When a suspect is taken into custody and questioned, based on
Amendments 5 & 6, police must read the suspect their rights (to protect the
less educated who may not know what their rights are).: These rights
include:

Your right to remain silent
o
Anything you say can be used against you
o
Your right to a lawyer
o
If you are too poor to hire a lawyer, the court will provide you with
one
You can stop questioning at any time and request to see a lawyer
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
________________________________________________________________
AMENDMENT VI (Due Process)
“IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF
THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN
COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY
ASCERTAINED BY LAW, AND THE BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR
OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE
ASSISTANCE OF THE COUNSEL FOR HIS DEFENSE.”
6th Amendment Rights
 A speedy trial
This has been defined by the courts as a trial being held “without unreasonable
delay.” The courts have never defined it in terms of a specific number of days or
months. Many states (including Texas) have speedy trial laws requiring criminal
trials begin within a certain time period after charges have been filed. In Texas it is
180 days—6 months.
 A public trial
The trial must be open to the public and press to guarantee its fairness. Public and
media scrutiny make it less likely that the government or prosecution could railroad
someone and obtain a guilty verdict.
 An impartial jury
This has been defined as a jury with “randomly selected” jurors (no one group
deliberately excluded) and composed of jurors who can be objective and have not
yet formed a prejudicial opinion about the case. This is becoming increasingly
difficult in cases extensively covered by the media (ex.: the OJ Simpson trial, the
Scott Peterson case, the Kobe Bryant case)
 Trial in state and district where crime committed
An exception to this is if the trial judge orders a change of venue (moving the
location of the trial to another jurisdiction where there has been less media coverage
or where it might be easier to select an impartial jury. This was done in the Timothy
McVeigh/Okahoma City bombing trial—it was moved from Oklahoma City to Denver.
 Be informed of charges against you
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties



A defendant must be told of the charges against him/her so that an adequate
defense can be prepared.
Confront witnesses against you
The defendant and defense attorney must know how the prosecution’s witnesses are
so that an adequate defense can be prepared. The defense must have the
opportunity to cross-examine all witnesses. This is even true in child molestation
cases although precautions are taken to minimize the trauma to young child victims.
Often the child victim is placed behind a screen or one-way mirror.
Compulsory process for obtaining witnesses on defendant’s behalf
The defense must have the same right as the prosecution to subpoena reluctant
witnesses.
Assistance of counsel (right to an attorney)
The courts have ruled that an indigent (poor) defendant must be provided with a
court-appointed attorney, at the taxpayers’ expense.
______________________________________________________________________
AMENDMENT VII
“IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL
EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY, SHALL BE
OTHER WISE RE-EXAMINED IN ANY COURT OF THE UNITED STATES, THAN
ACCORDING TO THE RULES OF THE COMMON LAW.”
7th Amendment Rights
In a civil trial, if the amount of the dispute exceeds $20, either party can ask for a jury trial.
________________________________________________________________________
AMENDMENT VIII
“EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES
NEITHER IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED.”
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
8th Amendment Protections/Rights
1. No excessive bail
Bail is money put up by the defendant so that if they are released, they will
appear at the trial. Failure to appear results in forfeiture of the money. The bail
must be proportionate to the crime—the more serious the crime, the higher the
bail. Judges can deny bail if the defendant is viewed as a flight risk or poses a
danger to the community.
2. No excessive fines
Fines must be proportionate to the crime; the more serious the crime, the higher
the bail.
3. No cruel and unusual punishment
The U.S. Supreme Court has ruled that “cruel and unusual” is an “evolving
standard,” changing as society’s attitudes change. Punishments that may have
been constitutional and permissible in the past may not be today or in the future
as society’s standards change. “Cruel and unusual” has been defined as:
o CRUEL AND UNUSUAL EQUALS:
1. NO TORTUROUS ,BARBAROUS, OR INJURIOUS PUNISHMENTS
2. NO PUNISHMENT TOO EXCESSIVE FOR THE CRIME COMMITTED
3. DEATH PENALTY CANNOT BE USED UNLESS CERTAIN GUIDELINES
ARE FOLLOWED
4. JAIL AND PRISON CONDITIONS CANNOT GET TOO EXTREME OR
SEVERE

Thus, the ban against cruel and unusual punishment applies to:
o Excessive punishment—disproportionate to the crime
o Jail and prison conditions that become too inhumane
o The death penalty—if used inappropriately
Supreme Court Guidelines the Death Penalty
The U.S. Supreme Court has established guidelines to for states using the death penalty to
ensure that it is used fairly and evenly (and not randomly and capriciously as the Supreme
Court ruled it was being used prior to 1976.)
Death Penalty guidelines
1.
2.
3.
4.
No mandatory death penalty
A capital crime has to involve taking a human life.
Consideration has to be given to the defendant’s character and record
Consideration must be given to relevant mitigating circumstances.
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The Pros and Cons of the Death Penalty
A. Pros
-Protects Society –if they are executed they cannot be released to walk
the streets one day and pose a threat to society and kill again
-Deterrent—if a murder knows they will be executed, they are less likely to
murder their victim
-Old Testament Justice--Punishment should fit the crime, and what could
be more “proportionate” or fair than executing someone who has taken
another’s life?
-It was not viewed as cruel and unusual by the framers of the constitution
and shouldn’t be today—ex.: 5th Amendment
-Some violent and deranged murders cannot be rehabilitated
B. Cons
-Expensive—it actually costs more to execute a defendant than to keep
them locked up for the rest of their lives; Why?—cost of their appeals
and all of the legal fees & court costs
-Ties up the courts with all of the appeals—thus creating a larger backlog
of cases
-By 20th century standards it is be cruel and unusual; most western
nations have abolished the death penalty; nations that still use it are
China, Iran, Iraq, Saudi Arabia, and most Moslem nations
-Possibility of a mistake and society ends up killing someone innocent
-Not a deterrent since most murders are crimes of passion and committed
by people who have never murdered
-Moral and religious argument—God creates all life and only God should
take someone’s life
-Can rehabilitate most criminals—so why execute them
-Used unevenly as far as minorities and wealth/social class of accused; a
Georgia study in the 1970s revealed that a black person killing a white
was 30 times more likely to be given the death penalty than a white
person killing a black
________________________________________________________________________
CRIMINAL JUSTICE RIGHTS (A review and summary)
I. RIGHTS OF CRIMINAL SUSPECTS
1.
No unreasonable searches & seizures-- police need a valid search
warrant or probable cause in most cases.
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2.
Exclusionary rule - illegally seized evidence cannot be used Amendment 4.
3.
Wiretapping & electronic eavesdropping-- police need a prior court
order--protected by the right to privacy and Amendment 4--no unreasonable
searches & seizures.
4.
Protection from self-incrimination & coerced confessions-Amendment 5--includes right to remain silent
5.
Miranda rights--When taken into custody and questioned, based on
Amendments 5 & 6, police must read the suspect their rights (to protect the
less educated who may not know what their rights are). These rights include:

Your right to remain silent
o
Anything you say can be used against you
o
Your right to a lawyer
o
If you are too poor to hire a lawyer, the court will provide you with one
o
You can stop questioning at any time and request to see a lawyer
II RIGHTS OF THE ACCUSED

Indictment by a grand jury--for all felonies--Amendment 5

Admission to bail--no excessive bail, to be released while awaiting trial-Amendment 8

Speedy trial- never defined, except--no unreasonable delays--Amendment 6

Public trial - must be open to public and press--Amendment 6

Impartial jury- randomly selected B no opinion or quilt or innocence when
selected & no ties to case or defendant

Right to counsel (lawyer) - Amendment 6 - If you cannot afford to hire own
lawyer, court must appoint one.

Right to confront witnesses --know witnesses against you & cross-examine
them--Amendment 6

Right to know Charges against you --to prepare your defense --Amendment
6

Right to subpoena witnesses-- to obtain witnesses on your behalf for your
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Federal Government 2305—Unit 8 lecture notes—Civil Liberties
defense--Amendment 6
III PUNISHMENT AND REVIEW OF CONVICTION

Sentencing--generally can choose to be sentenced by a judge or jury.

Freedom from cruel and unusual punishment - Amendment 8 - Death
Penalty and Punishment
 a) no torture or barbarous punishment (branding, whipping,
castration)

b) sentence must be reasonable - in proportion to the crime

c) death penalty constitutional if certain Supreme Court guidelines
are followed to guarantee fairness in its use
Right of Habeas corpus - Article 1, Section 9 - protection against false arrest – a
suspect who believes he/she has been falsely arrested and/or illegally detained
they can ask to be taken before judge and those detaining him/her must justify
why the suspect is being held. If they cannot do that to the satisfaction of the
judge or magistrate, that judge or magistrate will order the release of the suspect.
–
Right to Appeal-- Although this is not an absolute right and there is no guarantee
your appeal will be accepted, you can appeal and attempt to convince the court of
appeals that an important error was made in the lower court which affected the
"fairness" of the trial.
_________________________________________________________________
The 2nd Amendment
Gun control, the Constitutional Issue, and the Pros and Cons.
Amendment 2
“A well regulated militia, being necessary to the security of
a free state, the right of the people to keep and bear arms,
shall not be infringed.”
The U.S. Supreme Court Interpretation of the 2nd Amendment
o The US Supreme Court has interpreted the 2nd Amendment, beginning in the 1870s,
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when it was VERY conservative to:
o apply to a collective right to bear arms, not an individual right (contrary to NRA)
o apply to the defense of our nation and not personal protection of our family or
ourselves (contrary to what the NRA has long argued)
The Pros and Cons of Gun Control
A. Pros
-Eliminate crimes of passion
-Restricts access from mentally unstable persons
-Limiting dangerous types of guns owned—assault guns which are guns of war, not
guns for hunting or self defense
-2nd Amendment does not guarantee and individual right to bear arms
-More likely to be killed by someone you know—
-More likely to be turned against you-- thus, having a gun makes a person more likely to
be shot and killed
-Accidental shootings will be reduced
-Murder rates are lower in other countries where strict gun control exists (ex.:
comparing the U.S. to Canada, Great Britain)
B. Cons
-Criminals will still be armed
-2nd Amendment’s right to bear arms is violated
-Produces more safety in one’s own home
-keeps the government in check—if you are armed, you can resist government tyranny
-Leaves law abiding citizens defenseless & criminals having the weapons (through the black
market, their criminal acquaintances, etc.)
Learning Activities:
Cummings and Wise, Ch.4 Civil Liberties
Cummings and Wise, Ch.7-pp. 257-268- on abortion
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Federal Government 2305—Unit 13 lecture notes-Civil Liberties
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Federal Government 2305—Unit 13 lecture notes-Civil Liberties

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Federal Government 2305—Unit 13 Lecture Notes—Civil Liberties
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