Due Process
• “Due Process” - every citizen must be treated
fairly and equally before the law
• 5th amendment
• The Federal Government cannot take away life, liberty, or
property without following the steps of the law.
• 14th
– Same steps of law must be taken by state and
local governments.
Due Process
• http://www.youtube.com/watch?v=o8Dunck
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Rights of the Accused
• Before a student gets suspended, they have a
right to know the accusations.
• Students are not entitled to a lawyer or to call
witnesses.
Two Types of Due Process
• Procedural
– The how
• Methods of government action
• Police have to treat everyone fairly
• Substantive
– The what
• Policies of government action
• Laws have to be fair
Procedural (methods) Example
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Rochin v. California (1952)
Narcotics dealer
LA county sheriffs acted on a tip
Busted down the door
Rochin quickly swallowed two capsules
Officers has his stomach pumped at the hospital
2 Morphine capsules.
Did Rochin receive due process?
Rochin v. California
• “This is conduct that shocks the conscience.
Illegally breaking into the privacy of the
accused, the struggle to open his mouth and
remove what was there, the forcible
extraction of the stomach’s contents—this
course of proceedings by the agents of the
federal government to obtain evidence is
bound to offend even hardened senses. These
methods are to close to the rack and screw…”
Substantive (policies)
Example
• Peirce v. Society of Sisters (1925)
• Oregon law state that public school was
required from ages 8-16
• The goal was to force private and catholic
schools out of the state.
• The law wasn’t enforced unfairly, but the
policy itself was unconstitutional
•Ex Post Facto laws may not be passed
by Congress or the President after you
commit a crime.
If you were chewing gum last week and an
anti-gum law was passed yesterday, you
could NOT be charged with a crime.
Search and Seizure
–4th Amendment: Protects you from
“unreasonable search and seizure”.
- Officers MUST have a warrant in order to search
you/your property, seize evidence, or make an arrest.
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– Terms to know:
– Probable Cause - reasonable suspicion of
criminal behavior. It is necessary in before
police can get a warrant.
– Exclusionary Rule – illegally seized evidence
cannot be used in a court of law
They don’t need a warrant to search:
• If you are being lawfully arrested and the officer finds a
weapon/evidence while arresting you, a specific warrant is
not needed for the weapon.
• If an illegal object is in “plain view” of an officer
• If you are in a vehicle – they only need “probable cause”
• If you give the officer consent to search.
• If you are at school – the search can be based on
“reasonableness” and not necessarily on “probable cause.”
•“Toy gun mistaken for a real gun”
• When they are in “hot pursuit” of a fleeing suspect.
• If they are using the “stop and frisk” method to investigate a
person’s “suspicious behavior” in public.
The Trial
5th Amendment:
• Protects against self-incrimination
• You do not have to testify at your trial against yourself
• Protects you from double jeopardy
• Cannot be tried for same trial twice
6th Amendment:
•Guarantees a speedy and public trial
•Guarantees impartial jury of your peers
•Guarantees your right to an “adequate defense”
•Good/prepared attorney
•Right to attorney
Miranda Rights
You MUST be read your “Miranda Rights”
• Right to remain silent
• Anything you say can be used against you in court
• Right to an attorney and to have them present during
questioning
• If you cannot afford an attorney, one will be provided for
you (6th amendment)
You must be told of charges - if you aren’t, you can request a
writ of habeas corpus. The judge will make the officers
explain why you should not be released. (6th amendment)
The Punishment
8th Amendment
• No excessive bail
• No cruel and unusual punishment
• Capital Punishment/Death Penalty?
Video: Rachel Hoffman’s Story (20mins)
http://www.youtube.com/watch?v=euhN57b2Ayg
Rachel Hoffman’s Story
1. Did the police need a warrant the first time Rachel got
arrested? Why or why not?
2. Did the police need a warrant the second time Rachel got
arrested? Why or why not?
3. Why should Rachel have demanded a lawyer’s presence
EVERY TIME she dealt with the police?
4. Explain what the police should/could have done differently in
this case in order to ensure justice and protect the rights of the
accused.
5. Is there anything else Rachel could have done to protect
herself legally and/or physically?