Due Process of the Law
Requires the state and the federal government
in matters of life, liberty, or property of
individuals to be reasonable, fair, and follow
known rules and procedures
Substantive due process
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Requires law to be fair and reasonable
Protects individuals from other individuals
Guarantees that everybody would be seen
equal under the eyes of the law
Procedural Due Process
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Government must respect all, not some, of the
person's legal rights.
This requires government to follow specific
steps before taking a person’s fundamental
rights
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search,
arrest,
persecute,
imprison
Rule of Law
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Government officials must obey the law
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Taking someone’s rights must be done according
to fair, and established procedures.
By following Due Process:
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We hope to reduce the risk of ,mistakes,
prejudice, or innocents being accused pr
convicted of crimes
Protections Against
Unreasonable Law
Enforcement Procedures
Amendments 4-5
Searches
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Searching
Warrant v. General warrant
Searching with Probable Cause
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There must be a good reason for suspecting a person has
committed a crime
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The reasons must be presented to a judge
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Affidavit
The judge then determines if there is a probable cause to suspect
a violation
Judge signs warrant
Controversies
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A Warrant is not needed when…
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Specific facts justify intrusion from aurthorities
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A violent crime is taken place
A robbery is in progress
Arrest must be performed before suspect injures
others
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Later the officer must convince a judge that they had
probable cause
Enforcing the 4th Amendment
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Officers have the power to
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Stop and question
Use force to restrain (only if necessary)
Search
Arrest and place a person in jail
Question while in jail
In case of abuse
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Departmental discipline
Civilian review boards
Civil suits
Exclusionary rule
Exclusionary Rule
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Any evidence gained by breaking the law may
not be used in court
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Mapp v Ohio
Excludes evidence in violation of the 5th
Amendment
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self-incrimination
Right against Self-Incrimination
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Protection for both innocent and guilty from
potential abuse of government
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“No person…shall be compelled in any criminal case to
be a witness against himself”
 It allows a person who is testifying to refuse to answer
questions that could incriminate him or her
 Immunity
 Taking the Fifth
 Miranda rule
 Miranda v Arizona
Miranda Rule
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Miranda v Arizona
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Have the right to remain silent
Have the right to have an attorney
Anything they say may be used againt them in
court
If one cannot afford an attorney, one will be
appointed for them
Limitations
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Personal
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Cannot be use to protect business or unions
Cannot be used to protect a friend or family
member
Provisions of the 5th Amendment
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Once a person is arrested, he/she must be
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Charged in a judicial proceeding
Indicted by a grand jury
Double jeopardy
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If one is acquitted he/she may not be tried
6th Amendment Provisions
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Limitation placed on the Government
Intended to provide a fair hearing in court for
criminal trials
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Speedy trials and public trail
Impatial jury
Location of trial
Right to counsel
Compulsory process and confrontaion
The Right to Counsel
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Adversary System
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The need for a layer in a complex system
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Specialization on every area of the judicial system
This right is now a guarantee
Every person needs a lawyer
If one cannot afford a lawyer the court will
appoint one
Trial by Jury questions
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Is trial by jury required in all criminal cases?
Must all juries have twelve jurors?
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Williams v Florida
Does proof beyond a reasonable doubt require
a criminal jury to be unanimous?
Who qualifies to serve on a jury?
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Taylor v. Louisiana
Purpose of the 8th Amendment
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A person is presumed innocent until proven
guilty
Free on bail pending trial
Problems with implementing bail
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Unfair treatment to the poor
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Punishing the innocent poor with
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The poor are more likely to stay in jail
Imprisonment
Uncompensated time lost
Increases chances of convictions
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Studies have shown….
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Judges and juries tend to convict people who have
been held in jail
“Cruel and unusual punishment”
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The concept has changed over the years
It may include
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Torture
Inhumane imprisonment
Threading
Capital Punishment
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The constitution states that someone's life
cannot be taken away without the due process
of law
If due process is provided then life may be
taken away as a necessary punishment
At one time:
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Execution was an automatic penalty for
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Murderers
Rapists
Execution were left out to the jury to decide
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Studies have shown
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The race of the defendant and the victim appeared to be
the most important factor
The death penalty does not decrease crime rates
The death penalty is more expensive than sentencing a
person to life without parole
Murderers of whites are more likely to be sentence to
death than murderers of blacks
Guided Discretion
Created to solve the problem of discrimination
and prejudice in our judicial system
 Guided discretion laws:
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Jury or judges have to decide whether to sentence
a person to life or death at a hearing
Hearing was to be held after a trial where a
person has been found guilty
This is a time to hear from the defense and the
state, along with witnesses who may request the
jury or judge an specific sentence
Capital Punishment cases
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Furman v Georgia
Coker v Georgia
Roper v Simmons