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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.
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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.
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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.
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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.
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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.
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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.
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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.
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1. What does due process mean?
2. What are the two types of due process? How are
they different?
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3. What are police in charge of?
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4. Is there a right to privacy?
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5. What issues do we see today regarding the
Second Amendment?
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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.
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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?
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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.
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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.
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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.
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6. Define what constitutes as probable cause.
7. When do police not have to have a warrant
to search a vehicle?
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8. What is the exclusionary rule?
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9. How has the Patriot Act changed things?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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
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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).
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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?