WRIT OF HABEAS CORPUS—aka “Writ of
liberty”
 Demands the person being held is
brought before the court
 The officer must show cause to hold the
person
 Article I, Section 9
 Cannot be suspended “unless when in
Cases of Rebellion or Invasion…”
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President Lincoln suspended it in 1861
 Habeas Corpus has only be suspended
once since 1861
 Governor of Hawaii suspended it on
Dec. 8, 1941 but it was ruled
unconstitutional in 1946
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Legislative act that inflicts punishment
without a court trial
Article I, Sections 9 & 10
Ban protects individual freedoms and our
system of separation of powers.
United States v. Brown (1965)
An infrequent ruling by USSC
Landrum-Griffin Act of 1959 made it illegal
for a member of the Communist Party to be
an officer of a labor union (law overturned)
Definition--Law passed after the fact
 Three features:
 1) is a criminal law, one defining a crime
or providing for its punishment
 2) applies to an act committed before its
passage
 3) works to the disadvantage of the
accused
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Example—A law banning the sale of
marijuana cannot be applied to
someone who sold it before the law was
passed
 Carmell v. Texas (2000)—last ruling on ex
post facto laws
 USSC overturned a man’s sexual abuse
conviction because of a change in State
law
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Retro-active civil laws are permitted
 It is legal for the government to increase
income taxes in November and have it
apply to the entire year
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“No person shall be held to answer for a
capital, or otherwise infamous, crime
unless on a presentment or indictment of
a Grand Jury…”—Vth Amendment
 Formal device by which a person can be
accused of a serious crime
 Federal cases—16 to 23 persons with at
least 12 people agreeing to charge
someone
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INDICTMENT—a formal complaint that
the prosecutor lays before a grand jury.
It charges the accused with one or more
crimes
 PRESENTMENT—formal accusation by the
Grand Jury
 Grand Jury sessions are secret since they
are not trials
 The defense is not allowed to present
material
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Contained in the Vth Amendment
 DOUBLE JEOPARDY—once a person has
been tried for a crime, he or she cannot
be tried again for that exact same crime
 Example—O.J. Simpson Murder Trial
 It is possible to violate both federal and
state statues in one act
 Trials in this case would not be in violation
of Double Jeopardy
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If a jury cannot decide on a verdict, a
mistrial is declared and there is not
jeopardy so the case could be retried
with a new jury
SPEEDY TRIAL
 The government will try a person for a
crime within a reasonable amount of
time
 How long is too long? No specific time
set
 Barker v. Wingo (1972)—four criteria for
determining if the time was too long
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1) the length of the delay
 2) the reasons for it
 3) whether the delay has in fact harmed
the defendant
 4) whether the defendant asked for a
prompt trial
 Speedy Trial Act of 1974 set time
between arrest and trial at 100 days with
exceptions (extensive medical tests, etc.)
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VIth Amendment says the trial must be
public
 Judges can regulate how many
spectators can view and trial and make
sure there are no disruptions
 Members of the media have no extra
rights to be in a courtroom than anyone
else
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Television is barred from all federal
courtrooms
 Most states allow some form of television
during trials
 Defendant has to agree to the TV
coverage
 Estes v. Texas (1965)—USSC overturned
the conviction of a man because of too
much press coverage
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VIth Amendment says that a person
accused of a federal crime must be tried
“by an impartial jury”
 Trial by jury also mentioned in Article III,
Section 2
 Prospective jury members must be drawn
from the state and district where the
crime was committed
 Defendant may request a “change of
venue”
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A defendant may also waive their right
to a jury trial
 BENCH TRIAL—Only the judge hears the
trial and decides guilt or innocence
 The defendant can plead guilty to avoid
a trial
 In Federal Cases, juries must vote
unanimously to convict
 Most states also follow this rule.
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Every person accused of a crime is
entitled to the best possible defense that
circumstances will allow.
 VIth Amendment says that a defendant:
 1) has the right “to be informed of the
nature and cause of the accusation”
 2) has the right “to be confronted with
the witnesses against him”
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3) has the right “to have compulsory
process for obtaining witnesses in his
favor” (subpoena—forced to testify)
 4) have the right “to have the Assistance
of Counsel for his defense”
 Gideon v. Wainwright (1963)
 USSC held that an attorney must be
furnished to a defendant who cannot
afford one.
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Guarantee set out in the Vth
Amendment
 In a criminal case, the burden of proof is
always with the prosecution
 Malloy v. Hogan—the prosecution
cannot force the accused to “prove the
charge against” him “out of his own
mouth”
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APPLYING THE GUARANTEE
 “Taking the Fifth” applies to any
governmental proceeding in which a
person in legally compelled to answer
any question that could lead to a
criminal charge.
 Escobedo v. Illinois (1964)—conviction
overturned because defendant was
refused an attorney and not told he was
entitled to one.
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MIRANDA v. ARIZONA (1966)
 A mentally retarded man, Ernesto
Miranda had been convicted of
kidnapping and rape.
 10 days after the crime, the victim picks
Miranda out of a line-up
 After being questioned for 2 hours,
Miranda confessed
 He was not told of his rights
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His conviction was overturned.
 USSC said they would no longer uphold
any conviction if the suspect had not be
told about their constitutional rights.
 Miranda Rule:
 1) right to remain silent
 2) anything said can be used against
them
 3) right to have an attorney present
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4) If you can’t afford an attorney, one
would be appointed at public expense
 5) may end police questioning at any
time
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THE END