Civil Liberties: Protecting
Individual Rights
Chapter 20
Due Process of Law
• Procedural Due Process means the actions the
government uses to enforce the laws must be
fair
– The 5th amendment provides that the Federal
Government cannot deprive any person of life,
liberty, or property without due process of law
– Case Example: Rochin v California, 1952
• Having "some information" that petitioner was
selling narcotics, three state officers entered his
home and forced their way into the bedroom
occupied by him and his wife. When asked
about two capsules lying on a bedside table,
petitioner put them in his mouth
• . After an unsuccessful struggle to extract
them by force, the officers took petitioner to a
hospital, where an emetic was forced into his
stomach against his will. He vomited two
capsules which were found to contain
morphine. These were admitted in evidence
over his objection, and he was convicted in a
state court of violating a state law forbidding
possession of morphine
• Substantive Due Process means the
government’s actions be fair.
– The 14th amendment provides that State
and local governments cannot deprive any
person of life, liberty, or property
– Case Example: Pierce v Society of Sister, 1925
• In November, 1922, the state of Oregon passed the
Compulsory Education Act, which required every
child from the ages of eight to sixteen to attend 'a
public school for the period of time a public school
shall be held during the current year' in the district
where the child resides; failure so to do was
declared a misdemeanor.
• Can the State require all children to attend public
schools? In a unanimous decision, the Supreme
Court ruled on June 1, 1925 against the State and
in favor of parents in this case.
• According to the Court, the law violated the Due
Process Clause of the Fourteenth Amendment:
• Police Power is the authority of each state to
act to safeguard the well-being of its people
– To promote health
– To promote safety
– To promote morals
– To promote the general welfare
• Right to Privacy
• Established with the case of Griswold v
Connecticut, 1965
• Facts of the Case:
• Griswold was the Executive Director of the
Planned Parenthood League of Connecticut. Both
she and the Medical Director for the League gave
information, instruction, and other medical
advice to married couples concerning birth
control. Griswold and her colleague were
convicted under a Connecticut law which
criminalized the provision of counseling, and
other medical treatment, to married persons for
purposes of preventing conception.
• Question:
• Does the Constitution protect the right of
marital privacy against state restrictions on a
couple's ability to be counseled in the use of
contraceptives?
• Conclusion:
• Though the Constitution does not explicitly
protect a general right to privacy, the various
guarantees within the Bill of Rights create
penumbras, or zones, that establish a right to
privacy. Together, the First, Third, Fourth, and
Ninth Amendments, create a new
constitutional right, the right to privacy in
marital relations. The Connecticut statute
conflicts with the exercise of this right and is
therefore null and void.
• Defined with the case of Stanly v GA, 1969
• Facts of the Case:
• Law enforcement officers, under the authority
of a warrant, searched Stanley's home
pursuant to an investigation of his alleged
bookmaking activities. During the search, the
officers found three reels of eight-millimeter
film. The officers viewed the films, concluded
they were obscene, and seized them. Stanley
was then tried and convicted under a Georgia
law prohibiting the possession of obscene
materials.
• Question:
• Did the Georgia statute infringe upon the
freedom of expression protected by the
First Amendment?
• Conclusion:
• The Court held that the First and Fourteenth
Amendments prohibited making private
possession of obscene materials a crime. In his
majority opinion, Justice Marshall noted that
the rights to receive information and to
personal privacy were fundamental to a free
society. Marshall then found that "[i]f the First
Amendment means anything
• , it means that a State has no business telling a
man, sitting alone in his own house, what books
he may read or what films he may watch. Our
whole constitutional heritage rebels at the
thought of giving government the power to
control men's minds." The Court distinguished
between the mere private possession of obscene
materials and the production and distribution of
such materials. The latter, the Court held, could
be regulated by the states.
• Provoked controversy with the case of Roe v
Wade, 1973
– The alias "Jane Roe" was used for Norma
McCorvey, on whose behalf the suit was originally
filed, alleging that the abortion law in Texas
violated her constitutional rights and the rights of
other women.. The defendant was the district
attorney of Dallas County, Texas, Henry B. Wade.
• Roe v. Wade is the historic Supreme Court
decision overturning a Texas interpretation of
abortion law and making abortion legal in the
United States. The Roe v. Wade decision held
that a woman, with her doctor, could choose
abortion in earlier months of pregnancy
without restriction, and with restrictions in
later months, based on the right to privacy
Freedom & Security of the Person
• Slavery & Involuntary Servitude
– Slavery ended with the 13th amendment in 1865
which also protects us against forced labor and
involuntary servitude
– This is the only part of the Constitution that
covers the actions of private individuals as well as
that of the government
– Until the 1960s, citizens and the Supreme Court
thought the 13th amendment did not apply to
racial discrimination
– In 1968, the court upheld the provisions of
the Civil Rights Act of 1866. This meant that
racial discrimination was unconstitutional.
They applied this to ethnicity too.
• The Right to Keep and Bear Arms
– The 2nd amendment protects the right of each
state to form and keep a militia.
– A lot of people believe this applies to one’s
individual right to own a gun.
– The Supreme Court has tried only one important
2nd Amendment case, U.S. v Miller, 1939. The case
dealt with shipping sawed-off shotguns, etc. and
taxing them if they went across state lines. The
Supreme Court upheld the tax.
– The 2nd amendment does NOT extend to state
governments. Therefore, the states have the right
to regulate arms in their own ways
• Security of Home and Person
– The 3rd and 4th amendments protect the security
of home and person
– The 4th amendment protects us from writs of
assistance (blanket search warrants)
– The 4th amendment protections are extended to
the states through the 14th amendment.
• Aspects of the 4th Amendment
– Probable Cause –to search a premise, in most
cases, a warrant must be obtained based on a
reasonable suspicion of crime.
• California v Acevedo, 1991
– Facts of the Case:
• California police officers saw Charles Acevedo
enter an apartment known to contain several
packages of marijuana and leave a short time
later carrying a paper bag approximately the
same size as one of the packages. When
Acevedo put the bag in the truck of his car and
began to drive away, the officers stopped the
car, searched the bag, and found marijuana. At
his trial, Avecedo made a motion to suppress
the marijuana as evidence, since the police had
not had a search warrant.
– Question:
• Under the Fourth Amendment, may police conduct a
warrantless search of a container within an automobile if they
have probable cause to believe that the container holds
evidence?
– Conclusion:
• Yes. In a 6-3 decision authored by Justice Harry Blackmun, the
Court reversed the Court of Appeal and ruled that the
"automobile exception" to the Fourth Amendment's general
search-warrant requirement is broad enough to cover a
situation where the police only have probable cause to believe
there is evidence in a specific movable container within the car.
The Court noted that the warrant requirement previously had
depended on a "curious

line between the search of an automobile
that coincidentally turns up a container and
the search of a container that coincidentally
turns up in an automobile." In place of that
uncertain distinction, the Court adopted a
single rule: "The police may search an
automobile and the containers within it
where they have probable cause to believe
contraband or evidence is contained."
• Katz v U.S., 1967 – unless police officers have
a warrant, tapping phone calls is not legal
– The DOJ says it has used the Patriot-amended
pen/trap provisions to track the communications
of a host of ne'er-do-wells. [The greatest-hits list it
sent the House Judiciary Committee in May
includes: "(1) terrorist conspirators, (2) at least
one major drug distributor, (3) identity thieves
who obtained victims' bank account information
and stole the money, (4) a four-time murderer,
and (5) a fugitive who fled on the eve of trial using
a fake passport." They also say the new authority
helped them investigate the murder of Daniel
Pearl.]
• Illinois v Wardlow, 2000 0 to arrest a person, a
police officer needs only probable cause
• Mapp v Ohio, 1961 – evidence gained as a
result of an illegal search cannot be used in
court.
– Dolree Mapp was convicted of possessing obscene
materials after an admittedly illegal police search
of her home for a fugitive. She appealed her
conviction on the basis of freedom of expression.
• Question:
• Were the confiscated materials protected by
the First Amendment? (May evidence
obtained through a search in violation of the
Fourth Amendment be admitted in a state
criminal proceeding?)
• Conclusion:
• The Court brushed aside the First Amendment
issue and declared that "all evidence obtained
by searches and seizures in violation of the
Constitution is, by [the Fourth Amendment],
inadmissible in a state court." Mapp had been
convicted on the basis of illegally obtained
evidence.
• Board of Education, Pottowatomie County v
Earls, 2002 – Drug testing can be conducted
without a warrant or probably cause
Rights of the Accused
• Article I, Sections 9 & 10
– Writ of habeas Corpus – a court order which
prevents unjust arrests and imprisonments
– Bills of Attainder – laws passed by Congress that
inflict punishment without a court trial.
– Ex Post Facto Laws – new laws cannot apply to
things that happened in the past
• Applies only to criminal laws, NOT civil laws
• Grand Jury
– An indictment is the formal device by which a person
can be accused of a serious crime
– It is required for federal courts under the 6th
amendment
– The grand jury deliberates on whether the
prosecution’s indictment, a formal complaint,
presents enough evidence against the accused to
justify a trial
– Only the prosecution present evidence at a grand jury
trial
– The right to a grand jury is not covered by the 14th
amendment’s Due Process Clause. Most states have
legislated to skip the grand jury stage
• Speedy and public trial
– The right to a speedy and public trial was
extended as part of the 14th amendment’s due
process clause by the case of Barker v Wingo,
1972
• Petitioner was not brought to trial for murder
until more than five years after he had been
arrested, during which time the prosecution
obtained numerous continuances, initially for
the purpose of first trying petitioner's alleged
accomplice so that his testimony, if conviction
resulted, would be available at petitioner's
trial. Before the accomplice was finally
convicted, he was tried six times
• . Petitioner made no objection to the
continuances until three and one-half years
after he was arrested. After the accomplice
was finally convicted, petitioner, after further
delays because of a key prosecution witness'
illness, was tried and convicted. In this habeas
corpus proceeding, the Court of Appeals,
concluding that petitioner had waived his
right to a speedy trial for the period prior to
his demand for trial, and, in any event, had
not been prejudiced by the delay, affirmed the
District Court's judgment against petitioner.
• Held: A defendant's constitutional right to a
speedy trial cannot be established by any
inflexible rule, but can be determined only on an
ad hoc balancing basis in which the conduct of
the prosecution and that of the defendant are
weighed. The court should assess such factors as
the length of and reason for the delay, the
defendant's assertion of his right, and prejudice
to the defendant. In this case, the lack of any
serious prejudice to petitioner and the fact, as
disclosed by the record, that he did not want a
speedy trial outweigh opposing considerations,
and compel the conclusion that petitioner was
not deprived of his due process right to a speedy
trial
– The 6th amendment requires that the
beginning of a person’s federal criminal trial
must take place no more than 100 days
after the arrest
– A judge can limit who can watch a trial if
the defendant’s rights are in jeopardy
• Trial by Jury
– Americans in criminal trials are guaranteed an
impartial jury chosen from the area where the
crime was committed
• If the trial is too sensational, the defense can request a
change of venue – move the trial to a less controversial
location
– If a defendant waives the right to a jury trial, a
bench trial is held where the judge alone hears
the case
– Most juries have to be unanimous to convict the
criminal
• Right to an Adequate Defense
– The accused has the following rights
• To be informed of the charges and form of the
accusation
• To be confronted with the witnesses against
her/her
• To be able to subpoena witnesses to testify on
his/her behalf
• To have an attorney speak in his/her defense
• Self-Incrimination
– The 5th amendment declares that no person
can be “compelled in any criminal case to
be a witness against himself.” This
protection extends to the States, and
sometimes to civil trials if the testimony
could lead to a criminal charge.
• A person cannot be forced to confess to a crime
under severe circumstances
• A husband or wife cannot be forced to testify
against their spouse, although they can testify
voluntarily.
• In the case of Miranda v Arizona, 1966, the
Supreme Court set an historic precedent when it
would no longer uphold convictions in cases in
which the defendant had not been informed of
his or her rights before questioning
• STATEMENT OF THE FACTS: Miranda (D) was
arrested and taken to the police station where
officers questioned him for two hours. D signed a
confession. The confession stated that it was
made voluntarily and that D had full knowledge
of his legal rights. D's confession was used against
him at trial and over D's objection. D was
convicted of rape and kidnapping. The state
supreme court affirmed the conviction. D
appealed.
• LEGAL ISSUE: Must law enforcement officials
inform an accused of his constitutional rights?
Are statements obtained from an individual
subjected to custodial police interrogation
admissible if he has not been notified of his
privilege under the 5th Amendment not to be
compelled to incriminate himself?
• HOLDING: Incriminating statements made by
an individual are only admissible if the
following safeguards have been taken; and/or,
when a person is taken into custody or
otherwise deprived of his freedom, the
following warnings must be given: he has the
right to remain silent; that anything he says
can be used against him in a court of law; that
he has the right to have an attorney present;
and if he cannot afford an attorney one will be
appointed for him.
Punishment
• Bail & Preventative Detention
– Bail is the sum of money that the accused has to
pay the court as a guarantee that he or she will
appear in court
– The Constitution does NOT guarantee that all
accused people are entitled to bail, just that it
cannot be excessive
– Preventative Detention is a law that allows judges
to keep accused felons behind bars if the accused
is a danger to society or that he/she might flee.
• U.S. v Salerno, 1987, the Supreme Court
upheld the concept of preventative detention,
stating that it did not necessarily mean the
accused was presumed guilty
– The 1984 Bail Reform Act allowed the federal
courts to detain an arrestee prior to trial if the
government could prove that the individual was
potentially dangerous to other people in the
community. Prosecutors alleged that Salerno and
another person in this case were prominent
figures in the La Cosa Nostra crime family.
–Question:
• Did the Bail Reform Act violate the Fifth
Amendment's Due Process Clause?
–Conclusion:
• The Court held that the Act was
constitutional because when the
government's interest in protecting the
community outweighs individual liberty,
pre-trial detention can be "a potential
solution to a pressing societal problem."
• Cruel & Unusual Punishment
– The 8th amendment forbids cruel and
unusual punishment
– The Supreme Court extended the 8th
amendment to the states in the case of
Robinson v California, 1962 when they ruled
that narcotics addiction was an illness and
NOT a crime.
– In Estelle v Gamble, 1976, the Supreme
Court ruled that a prison inmate could not
be denied medical care
• Capital Punishment
– Capital Punishment is the death penalty
– In Furman v GA, 1972, the Supreme Court
voided capital punishment stating that it
was applied unfairly to only a few convicts,
often African-Americans or the poor or both
• In Gregg v GA, 1976, the Supreme Court held
for the first time that a new law that provided
a two-stage trial for the death penalty was
constitutional
– The first trail was to determine guilt
– The second trial was to decide whether the
death penalty was warranted
– The Court later restricted the use of the
death penalty to cases where the victim
died
• Treason
– Treason is the only crime defined in the
Constitution
– Treason is
• Levying war against the U.S. or
• Giving aid and comfort to the enemies of the
U.S.
• Treason can only be committed during times of
war
• Treason is punishable by death.
• Other acts like espionage or sabotage can be
committed in peacetime
– John Brown of Virginia is the only person
ever to be executed for treason against a
State due to his pre-Civil War raid on
Harper’s Ferry.