Explain the 5th amendment
a.
Define writ of habeas corpus
i. Intended to prevent unjust arrests and imprisonments.
ii. Court order directed to an officer holding a prisoner. It says the prisoner be brought before the court and
that officer show cause – explain, with good reason – why the prisoner not be released.
b.
Define due process (pg. 564)
 Government must act fairly and in accord with established rules. It may not act unfairly,
arbitrarily (randomly/subjectively), capriciously (impulsively), or unreasonably
i. Define procedural due process
 Questioning the How, or the procedures, of the governmental action
1. Rochin v. California (1952)
a. Facts of the Case
i. Rochin swallowed drug capsules to dispose of evidence. The police pummeled
him and jumped on his stomach in a vain effort to make him throw up. They
took him to a hospital where a doctor was instructed by the police officers to
administer an emetic by forceably, and against Rochin’s will, passing a tube
into Rochin's stomach. He vomited the capules and was convicted on the basis
of the evidence produced from his vomit.
b. Question
i. Did the police procedure forcing Rochin to vomit violate the Fifth Amendment
privilege against self-incrimination and the Due Process Clause of the 14th
Amendment?
c. Conclusion
i. The police violated Rochin's right to due process of law. Due process was an
admittedly vague concept, but it prohibited "conduct that shocks the
conscience." This nebulous approach was mocked in a concurring opinion by
Justice Black.
ii. Define substantive due process
 Questioning the What, or the substance/policy of the governmental action
1. Pierce v. Society of Sisters
a. The law to outlaw parochial schools was found unfair
iii. Explain the State’s police power
1. Promote health
a. States can limit the sale of alcoholic beverages and tobacco, make laws to combat
pollution, and require the vaccination of school children
2. Promote safety
a. States can regulate the carrying of concealed weapons, require the use of seat belts, and
punish drunk drivers
3. Promote Morals
a. States can regulate gambling and outlaw the sale of obscene materials and the practice
of prostitution
4. Promote the General Welfare
a. States can enact compulsory education laws, provide help to the medically needy, and
limit the profits of public utilities
iv. Right to Privacy
1. Stanley v. Georgia (1969)
a. Stanley had obscene materials in his home.
b. Court struck down law stating, people have “the right to be left alone”
2. Bowers v. Hardwick (1985)
a. Facts of the Case
i. Michael Hardwick was observed by a Georgia police officer while engaging in
the act of consensual homosexual sodomy with another adult in the bedroom of
his home. After being charged with violating a Georgia statute that
criminalized sodomy, Hardwick challenged the statute's constitutionality in
Federal District Court. Following a ruling that Hardwick failed to state a claim,
the court dismissed. On appeal, the Court of Appeals reversed and remanded,
holding that Georgia's statute was unconstitutional. Georgia's Attorney
General, Michael J. Bowers, appealed to the Supreme Court and was granted
certiorari.
b.
3.
4.
Question
i. Does the Constitution confer a fundamental right upon homosexuals to engage
in consensual sodomy, thereby invalidating the laws of many states which
make such conduct illegal?
c. Conclusion
i. No. The divided Court found that there was no constitutional protection for acts
of sodomy, and that states could outlaw those practices. Justice Byron White
argued that the Court has acted to protect rights not easily identifiable in the
Constitution only when those rights are "implicit in the concept of ordered
liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the
Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held
that the right to commit sodomy did not meet either of these standards. White
feared that guaranteeing a right to sodomy would be the product of "judgemade constitutional law" and send the Court down the road of illegitimacy.
Lawrence & Garner v. Texas (2003)
a. Facts of the Case
i. Responding to a reported weapons disturbance in a private residence, Houston
police entered John Lawrence's apartment and saw him and another adult man,
Tyron Garner, engaging in a private, consensual sexual act. Lawrence and
Garner were arrested and convicted of deviate sexual intercourse in violation of
a Texas statute forbidding two persons of the same sex to engage in certain
intimate sexual conduct. In affirming, the State Court of Appeals held that the
statute was not unconstitutional under the Due Process Clause of the
Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986),
controlling.
b. Question
i. Do the criminal convictions of John Lawrence and Tyron Garner under the
Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by
same-sex couples, but not identical behavior by different-sex couples, violate
the Fourteenth Amendment guarantee of equal protection of laws? Do their
criminal convictions for adult consensual sexual intimacy in the home violate
their vital interests in liberty and privacy protected by the Due Process Clause
of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186
(1986), be overruled?
c. Conclusion
d. No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court
held that the Texas statute making it a crime for two persons of the same sex to engage
in certain intimate sexual conduct violates the Due Process Clause. After explaining
what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that
the case turned on whether Lawrence and Garner were free as adults to engage in the
private conduct in the exercise of their liberty under the Due Process Clause. "Their
right to liberty under the Due Process Clause gives them the full right to engage in their
conduct without intervention of the government," wrote Justice Kennedy. "The Texas
statute furthers no legitimate state interest which can justify its intrusion into the
personal and private life of the individual," continued Justice Kennedy. Accordingly, the
Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in
the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice
William H. Rehnquist and Justices Thomas joined, filed dissents.
Griswold v. Connecticut (1965)
a. State law (1879) outlawed birth-control counseling and prohibited all use of birthcontrol devices
b. In the case, a woman named Estelle Griswold, who was then the director of the Planned
Parenthood League of Connecticut, and Dr. C. Lee Buxton, who was a doctor and a
professor at the Yale School of Medicine, opened an abortion facility in New Haven
Connecticut specifically to test this law, which they viewed as unconstitutionally
violating a woman's "right" to have an abortion.
c. Court found unconstitutional (5th & 14th amendment)
5.
Abortion
a. Roe v. Wade (1973)
i. Abortion is legal
ii. Explain the trimester system
1. FIRST: State must recognize a woman’s right to an abortion and
cannot interfere with medical judgments in that matter
2. SECOND: State, acting in the interest of women who undergo
abortions, can make reasonable regulations about how, when, and
where abortions can be performed, but cannot prohibit the procedure
3. THIRD: State, acting to protect the unborn child, can choose to
prohibit all abortions except those necessary to preserve the life or
health of the mother
b. Webster v. Reproductive Health Services (1989)
i. Courts upheld abortion law provisions that prohibit abortions, except those to
preserve the mother’s life or health
1. in any public hospital or clinic in that State
2. when the mother is 20 or more week’s pregnant and tests show that
the fetus is viable (capable of sustaining life outside the mother’s
body)
ii. NEBRASKA: Legislative Bill 1103 uses fetal pain as the basis for banning
abortions at 20 weeks after fertilization. That point was chosen because some
experts say it is when a fetus can feel pain.
iii. LB 1103 also allows fewer exceptions to the ban, permitting abortions at 20
weeks or later only to protect a woman's life or prevent major physical
problems
iv. NEBRASKA: 48 hour waiting period for minors
c. Ohio v. Akron Center for Reproductive Health (1990)
i. Minors seeking an abortion must inform at least one parent before she can
obtain it
d. Minnesota v. Hodgson (1990)
i. Minors seeking an abortion must inform both parents of her intentions before
she can obtain it or she can get a judge to waive the parental consent
e. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
i. States may place reasonable limits on a woman’s right to have an abortion, but
these restrictions cannot impose an “undue burden” on her choice of that
procedure
ii. Pennsylvania’s Abortion Control Act
1. A woman who seeks an abortion must be given professional
counseling intended to persuade her to change her mind
2. A woman must delay an abortion for at least 24 hours after her
counseling
3. An unmarried female under the age of 18 must have the consent of a
parent, or the permission of a judge, before an abortion
4. Doctors and clinics must keep detailed records of all abortions they
perform.
f. Stenberg v. Carhart (2000)
1. A Nebraska law prohibited any "partial birth abortion" unless that
procedure was necessary to save the mother's life. It defined "partial
birth abortion" as a procedure in which the doctor "partially delivers
vaginally a living unborn child before killing the... child," and defined
the latter phrase to mean "intentionally delivering into the vagina a
living unborn child, or a substantial portion thereof, for the purpose of
performing a procedure that the [abortionist] knows will kill the...
child and does kill the... child." Violation of the law is a felony, and it
provides for the automatic revocation of a convicted doctor's state
license to practice medicine. Leroy Carhart, a Nebraska physician who
performs abortions in a clinical setting, brought suit seeking a
declaration that the statute violates the U.S. Constitution, claiming the
law was unconstitutionally vague and placed an undue burden on
himself and female patients seeking abortions. The District Court held
the statute unconstitutional. The Court of Appeals affirmed.
2.
3.
Question: Does the Nebraska statute, which makes the performance
of a "partial birth abortions" a crime, violate the liberty protected by
due process of the Fourteenth Amendment in the U.S. Constitution?
Conclusion: Yes
ii. The Federal Partial-Abortion Ban (2003)
1. It is a criminal ban on certain second-trimester abortions.
2. It is part of a larger agenda to outlaw abortion entirely.
3. It is the first federal law ever to criminalize safe medical procedures.
4. It is opposed by doctors and medical societies.
5. It is not about banning late-term abortions; 40 states already ban lateterm abortions and NARAL Pro-Choice America does not oppose
such restrictions.
6. It does not provide an exception to protect a woman's health.
7. 2007 in Gonzales v. Carhart and Gonzales v. Planned Parenthood
Federation of America (2007)
 The Federal Partial-Abortion Ban (2003) is Constitutional
 Overturned Stenberg v. Carhart (2000)
Nebraska Safe Haven Law
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Babies must be under 30 days old for the parents to qualify, and after that, parents and children are on their own.
Law was adopted as any minor could be dropped off with no questions asked. A rush of children from all over the United
States was dropped off in Nebraska hospitals.
Law was enacted in response to “dumpster babies”
Nebraska Abortion Laws
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28-337: Hospital, clinic, institution; not required to admit patient for abortion. No hospital, clinic, institution, or other
facility in this state shall be required to admit any patient for the purpose of performing an abortion nor required to allow the
performance of an abortion therein, but the hospital, clinic, institution, or other facility shall inform the patient of its policy
not to participate in abortion procedures. No cause of action shall arise against any hospital, clinic, institution, or other
facility for refusing to perform or allow an abortion.
28-338: No person required to perform an abortion; no liability for refusal. No person shall be required to perform or
participate in any abortion, and the refusal of any person to participate in an abortion shall not be a basis for civil liability to
any person. No hospital, governing board, or any other person, firm, association, or group shall terminate the
employment or alter the position of, prevent or impair the practice or occupation of, or impose any other sanction or
otherwise discriminate against any person who refuses to participate in an abortion.
LB675 – May 2009
 which would require that a doctor show the ultrasound image of the fetus to the woman
Nebraska: http://dl.aul.org/your-state
Pro-Life Ranking: 8th
Nebraska provides basic protections for women seeking abortions, for the unborn, and for the rights of conscience of healthcare
providers. In 2008, the state took further steps to protect human life by prohibiting the funding of and use of state facilities for
human cloning or destructive embryo research. The state does, however, fund ethical forms of research.
Abortion:
Overall Assessment: Marginal
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Under Nebraska law, a physician may not perform an abortion on a woman until at least 24 hours after counseling the
woman on the risks of abortion, the risks of continued pregnancy, and the probable gestational age of the unborn child.
Nebraska also provides materials describing the development of the unborn child, the medical and psychological risks
of abortion, available state benefits, and public
and private agencies offering alternatives to abortion.
A physician may not perform an abortion on an unemancipated minor until at least 48 hours after providing written
notice to one parent or a court order is secured.
Nebraska taxpayers are not required to pay for abortions except when the abortion is necessary to preserve the woman’s
life or the pregnancy is the result of rape or incest.
Nebraska prohibits organizations that receive public funds from using those funds to provide abortion counseling or to
make referrals for abortion.
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
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Group health insurance contracts or health maintenance agreements paid for with public funds may not include abortion
coverage unless an abortion is necessary to preserve the life of a woman.
Nebraska mandates minimum health and safety standards for abortion clinics which, at any point during a calendar
year, perform 10 or more abortions during one calendar week. The regulations prescribe minimum health and safety
standards for the building or facility, staffing, and medical testing of clinic employees.
Only physicians licensed by the state of Nebraska may perform abortions.
The state has an enforceable abortion reporting law, but does not require the reporting of information to the Centers for
Disease Control. The measure pertains to both surgical and nonsurgical abortions and requires abortion providers to
report short term complications.
Legal Recognition of Unborn and Newly born:
Overall Assessment: Protective
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Under Nebraska law, the killing of an unborn child at any stage of gestation is defined as a form of homicide. Nebraska
law also provides penalties for the vehicular homicide of an unborn child.
Nebraska criminalizes nonfatal assaults on an unborn child.
The state allows wrongful death (civil) actions when an unborn child at any stage of development is killed through
negligent or criminal action.
Nebraska law requires that “all reasonable steps, in accordance with the sound medical judgment of the attending
physician, shall be employed to preserve the life of a child” who is born alive following an attempted abortion at any
stage of development.
Nebraska has a “Baby Moses” law, prohibiting the criminal prosecution of someone who relinquishes a child to an onduty hospital employee.
The state funds drug treatment programs for pregnant women and newborns.
Bioethics Laws:
Overall Assessment: Somewhat Protective
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Nebraska prohibits state facilities from performing human cloning or destructive embryo research.
The state also bans fetal experimentation and prohibits monies from a state supported biomedical research fund from
being used for research on fetal tissues obtained from induced abortions.
The state also prohibits the state funding of human cloning or destructive embryo research, but provides funding for
ethical forms of stem cell research.
End of Life Laws:
Overall Assessment: Protective

In Nebraska, assisting a suicide is a felony.
c.
Define grand jury
i. Formal device by which a person can be accused of a serious crime.
ii. Define indictment
1. Formal complaint that the prosecutor lays before a grand jury. It charges the accused with one or
more crimes.
2. “true bill of indictment” = grand jury finds enough evidence for a trial / if not enough evidence
the charges are dropped
iii. Proceedings are not a trial
iv. Only prosecutors are present
v. Most criminal charges are not done in this way. Instead by an information, an affidavit.
d.
Explain double jeopardy
 Once a person has been tried for a crime, he or she cannot be tried again for that same crime
 Can be charged in federal and state courts for the same crime
o Michael Vick’s dog fighting case
 One crime can equal numerous charges
 No verdict does not mean double jeopardy
i. United States v. Di Francesco (1980)
1. Prosecutors can appeal the sentence if believed to be too lenient
ii. Benton v. Maryland (1969)
1. States must follow the double jeopardy rule based on the 14 th and 5th amendments
iii. Kansas v. Hendrick (1987) & Seling v. Young (2001)
1. Prisons can hold sex offenders longer than their sentences
2. Not punishment but safety for the community
a. Often times sent to hospitals or other state institutions
e.
Explain being a witness against one’s self
i. Plead the Fifth
http://www.youtube.com/watch?v=4CzocBkrWpA
ii. Can “take the fifth” anytime the answer to a question may lead to criminal proceedings
1. Divorce proceedings (civil matter)
2. Legislative committee
3. School board’s disciplinary hearing
iii. Court decides if proper to plead the fifth
iv. If used too many times or in the improper manner, COURT can put you into contempt
v. CANNOT plead the fifth if being:
1. Fingerprinted, photographed, handwriting sample, appearing in a police lineup, or blood test
vi. Malloy v. Hogan (1964)
1. CASE: William Malloy was arrested during a gambling raid in 1959 by Hartford, Connecticut
police. After pleading guilty to pool selling, a misdemeanor, he was sentenced to one year in jail
and fined $500, but the sentence was suspended after 90 days and Malloy was placed on two
years probation. Some 16 months following his plea, a Superior Court appointed referee ordered
Malloy to testify about gambling and other criminal activities in Hartford County. When Malloy
refused, "on grounds it may tend to incriminate [him]" he was imprisoned for contempt and held
until willing to answer questions.
2. States must follow the self-incrimination rule based on the 14th and 5th amendments
3. Burden of proof is on the prosecution
a. They cannot force the accused to “prove the charge against” him “out of his own
mouth.”
vii. Schmerber v. California (1969)
1. Can be forced to take a blood test in a drunk driving situation
viii. Ashcraft v. Tennessee (1944)
1. Police, working in shifts, interrogated a man for 36 straight hours. Under duress the man
confessed to hiring another person to kill his wife.
2. UNCONSTITUTIONAL
ix. Miranda v. Arizona (1966)
1. CASE:
a. Ernesto Miranda, a mentally retarded man, was arrested for kidnapping and rape. 10
days after the crime, the victim picked him out of a lineup. After 2 hours of questioning,
and at no time his rights were given, Miranda admitted to the crime.
2. Courts decision:
a. The person in custody must, prior to interrogation, be clearly informed that he has the
right to remain silent, and that anything he says will be used against him in court; he
must be clearly informed that he has the right to consult with a lawyer and to have the
lawyer with him during interrogation, and that, if he is indigent, a lawyer will be
appointed to represent him.
b. If the individual indicates in any manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must cease ... If the individual states
that he wants an attorney, the interrogation must cease until an attorney is present. At
that time, the individual must have an opportunity to confer with the attorney and to
have him present during any subsequent questioning.
3. Miranda Rule: http://www.mirandawarning.org/
a. Must be
i. Told of his or her right to remain silent (5 th)
ii. Warned that anything he or she says can be used in court (5 th)
iii. Informed of the right to have an attorney present during questioning (6 th)
iv. Told that if he or she is unable to hire an attorney, one will be provided at
public defense (6th)
v. Told that if he or she may bring police questioning to an end at any time (5 th)
vi. Knowing and understanding your rights as I have explained them to you, are
you willing to answer my questions without an attorney present?
b.
Dickerson v. United States (2000)
i. Facts of the Case: During questioning about a robbery he was connected to,
Charles Dickerson made statements to authorities admitting that he was the
getaway driver in a series of bank robberies. Dickerson was then placed under
arrest. The timing of his statement is disputed. The FBI and local detectives
testified that Dickerson was advised of his Miranda rights, established in
Miranda v. Arizona, and waived them before he made his statement. Dickerson
said he was not read his Miranda warnings until after he gave his statement.
After his indictment for bank robbery, Dickerson filed a motion to suppress the
statement that he made on the ground that he had not received Miranda
warnings before being interrogated. The government argued that even if the
Miranda warnings were not read, the statement was voluntary and therefore
admissible under 18 USC Section 3501, which provides that "a confession shall
be admissible in evidence if it is voluntarily given." The District Court granted
Dickerson's motion, finding that he had not been read his Miranda rights or
signed a waiver until after he made his statement, but the court did not address
section 3501. In reversing, the Court of Appeals acknowledged that Dickerson
had not received Miranda warnings, but held that section 3501 was satisfied
because his statement was voluntary. The court held that "Congress enacted
section 3501 with the express purpose of legislatively overruling Miranda and
restoring voluntariness as the test for admitting confessions in federal court."
ii. Question: May Congress legislatively overrule Miranda v. Arizona and its
warnings that govern the admissibility of statements made during custodial
interrogation?
iii. Conclusion: No. In a 7-2 opinion delivered by Chief Justice William H.
Rehnquist, the Court held that Miranda governs the admissibility of statements
made during custodial interrogation in both state and federal courts. "Miranda
has become embedded in routine police practice to the point where the
warnings have become part of our national culture," wrote Rehnquist. "Miranda
announced a constitutional rule that Congress may not supersede legislatively.
We decline to overrule Miranda ourselves," concluded the Chief Justice.
Dissenting, Justice Antonin Scalia, joined by Justice Clarence Thomas, blasted
the Court's ruling, writing that the majority opinion gave needless protection to
"foolish (but not compelled) confessions."
c.
Berghuis v. Thompkins (2009)
i. Facts of the Case: A Michigan state court convicted Van Chester Thompkins of
first-degree murder, assault with intent to commit murder, and several firearms
related charges. After exhausting his remedies in Michigan state court,
Thompkins petitioned for habeas corpus relief in a Michigan federal district
court. The district court denied the petition.
1. On appeal, Thompkins argued that his confession was obtained in
violation of the Fifth Amendment and that he was denied effective
counsel at trial. The Sixth Circuit held that the Michigan Supreme
Court's finding that Thompkins waived his Fifth Amendment right
was unreasonable because Thompkins refused to sign an
acknowledgement that he had been informed of his Miranda rights
and rarely made eye contact with the officer throughout the three hour
interview. The Sixth Circuit also held that the Michigan Supreme
Court improperly determined that Thompkins was not prejudiced by
his counsel's failure to request a limiting instruction related to his
separately tried co-defendant's testimony.
ii. Question:
1. Did the Sixth Circuit improperly expand the Miranda rule when it
held that defendant's Fifth Amendment rights were violated?
2. Did the Sixth Circuit fail to give the state court deference when it
granted habeas corpus relief with respect to defendant's ineffective
counsel argument when there was substantial evidence of the
defendant's guilt?
iii. Conclusion:
iv. Yes. Yes. The Supreme Court reversed the Sixth Circuit, holding that the state
court's decision to reject Mr. Thompkins' Miranda claim was correct. With
d.
Justice Anthony M. Kennedy writing for the majority, the Court reasoned that
Mr. Thompkins failed to invoke his Miranda rights to remain silent and to
counsel because he failed to do so "unambiguously." (undeniably) Moreover,
the Court reasoned that Mr. Thompkins waived his Miranda right to remain
silent when he "knowingly and voluntarily" made a statement to the police. The
Court further held that, even if Mr. Thompkins' counsel was ineffective, he
cannot show he was prejudiced by counsel's deficient performance – a
prerequisite to establishing that his Sixth Amendment right was violated.
v. Justice Sonia Sotamayor, joined by Justices John Paul Stevens, Ruth Bader
Ginsburg, and Stephen G. Breyer, dissented. She reprimanded the majority for
retreating from the broad protections afforded by Miranda, stating that now a
criminal suspect waives his rights simply by uttering a "few one-word
responses."
Yarborough v. Alvarado (2003)
i. Facts of the Case: Police interviewed Michael Alvarado, 17, without his
parents at a police station about his involvement in a crime. Police neither
arrested nor Mirandized Alvarado. During the interview, Alvarado confessed
involvement. Based, in part, on these statements, Alvarado was convicted of
second-degree murder and attempted robbery. After failed appeals in the
California courts, Alvarado unsuccessfully sought a writ of habeas corpus in
federal district court in California. The Ninth Circuit Court of Appeals
reversed. Recognizing the "in custody" standard to be whether a reasonable
person would feel free to end interrogation, the appeals court held that a
juvenile is more likely to feel he is in custody. Because Alvarado was "in
custody," the Fifth Amendment required that his rights under Miranda v.
Arizona (1966) be read to him.
ii. Question: When deciding whether a suspect is "in custody" and therefore
entitled to his Miranda warnings, must an officer consider the suspect's age and
previous history with law enforcement?
iii. Conclusion: No. In a 5-to-4 decision written by Justice Anthony Kennedy, the
Court ruled that the purpose of the Court's Miranda decision was to provide an
objective rule readily understandable by police officers: when interrogating a
suspect who is "in custody," an officer must first read the suspect his Miranda
rights. Determining whether a suspect is actually in custody has always been
based on objective criterion like whether he had been brought to the police
station by police or had come of his own accord. Requiring officers to consider
individual characteristics of a suspect when determining whether he is "in
custody," such as the suspect's age or previous history with law enforcement,
would make the test a subjective one that would be more difficult for officers to
understand and abide by. Justice Kennedy wrote that the Miranda decision
"states an objective rule designed to give clear guidance to the police, while
consideration of a suspect's individual characteristics - including his age - could
be viewed as creating a subjective inquiry."
x. Trammel v. United States (1980)
1. Spouses cannot be forced to testify against the other
2. Can voluntarily though.
xi. Illinois v. Perkins (1990)
1. Undercover cops do not have to give Miranda warnings to their cell mates while undercover.
xii. Missouri v. Seibert (2004)
1. Cops were questioning Patrice Seibert on a fire. Got the confession. Then began taping the
interview and read her the Miranda rights and got the confession out of her again.
2. “rehearsal confessions” are unconstitutional
xiii. Nix v. Williams (1984)
1. CASE: 10-year old girl disappeared from a Des Moines YMCA. A witness reported having seen
Robert Anthony Williams leaving the building carrying a “big bundle.” Police arrested him 2
days later. They were told not to “conduct any interrogation.” During interrogation, police
convinced Williams to admit to the location of the body.
2. “inevitable discovery” exception
a. If the evidence would have turned up eventually then it is OK.
3. Courts found this constitutional
f.
Define eminent domain
i. Government taking private land for public use
1. Must give “just compensation”
ii. Penn Central v. New York City (1978)
1. In this case, Penn Central Transportation Company wanted to construct a very tall office tower
above its already existing railroad station and smaller office building, known as Grand Central
Terminal. The existing building was considered to be a unique landmark of New York City
because of its design and style. Penn Central was in decline because of falling railroad usage and
wanted to use its airspace above the existing building to generate more income.
In order to build, Penn Central had to present its plans to the New York City Landmarks
Preservation Commission. The Commission ruled that Penn Central could not go through with its
project because the new development would change the existing landmark too much. Penn
Central sued in court, saying that the city's regulation of landmarks amounted to an Eminent
Domain Clause "taking" of their private property rights. They said if the city was allowed to
regulate them in this way, they should be compensated according to the 5th Amendment
Eminent Domain Clause.
The Supreme Court ruled against Penn Central. The Court said first of all that there is no set
procedure for ruling when an economic loss as a result of government regulations must be
compensated. It said the circumstances of each case must be judged individually. This view, of
course, leads to a wide variety of interpretations of the law.
The Court said that in order for an Eminent Domain Clause "taking" to occur as a result of a
regulation, and not an actual property transfer, the current use of the property must be damaged
by the regulation. The Court cited United States vs. Causby, 1946. In that case, a chicken farmer
received compensation for his property which was no longer usable due to local airport traffic
over his land. The current use of his land, chicken farming, was damaged by the government's
activity.
iii. Kelo v. City of New London (2005)
1. The case arose from the condemnation by New London, Connecticut, of privately owned real
property so that it could be used as part of a comprehensive redevelopment plan. The Court held
in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified
such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth
Amendment.
2. The decision was widely criticized by American politicians and the general public. Many
members of the general public viewed the outcome as a gross violation of property rights and as a
misinterpretation of the Fifth Amendment, the consequence of which would be to benefit large
corporations at the expense of individual homeowners and local communities.
3. In response to this fear and anger, several states passed laws and even constitutional amendments
restricting and defining their use of eminent domain. President Bush even signed an executive
order stating any property taken through the Eminent Domain Clause by the federal government
must be used for the "public benefit" and not for the economic interests of any other private
parties.
2.
Explain the 6th amendment
a.
Explain a speedy trial
i. Can’t be too speedy
1. Arkansas case thrown out because it only took 45 minutes
ii. Klopfer v. North Carolina (1967)
1. Extends 6th amendment to the States (14th amendment)
iii. Barker v. Wingo (1972)
1. Speedy Criteria
a. The length of the delay
b. Reasons
c. Has the delay harmed the defendant
d. Did the defendant ask for the delay
iv. Explain the Speedy Trial Act of 1974
1. Speedy = Usually within 100 days of being arrested
a. Exceptions = mental tests / witnesses are ill
b.
Explain a public trial
i. Public = Coverage from media must not infringe on defendant’s rights
1. Judge’s decision
2. OJ Simpson case / TV coverage???
3. Right is to the defendant not the media
ii. Estes v. Texas (1965)
1. Case dismissed because TV cameras made the trial a “circus-like” event
iii. Chandler v. Florida (1981)
1. Cameras are constitutional, just don’t get crazy
c.
Explain a trial by jury
i. Defendant has the right to:
1. Jury trial, chosen from “the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law.”
a. Williams v. Florida (1970)
i. Facts of the Case: In 1967, the state of Florida passed legislation to allow sixmember juries in criminal cases. Johnny Williams was tried and convicted for
robbery by such a jury. Williams, lost in a Florida appellate court; he appealed
to the U.S. Supreme Court.
ii. Question: Did a trial by jury of less than 12 persons violate the Sixth
Amendment?
iii. Conclusion: The Court held that "the 12-man [jury] requirement cannot be
regarded as an indispensable component of the Sixth Amendment." The Court
found that the purpose of the jury trial was "to prevent oppression by the
Government," and that the performance of this role was not dependent on the
particular number of people on the jury. The Court concluded that "the fact that
the jury at common law was composed of precisely 12 is a historical accident,
unnecessary to effect the purposes of the jury system and wholly without
significance 'except to mystics.'"
b. Burch v. Louisiana (1979)
i. Facts of the Case: Burch was found guilty by a nonunanimous six-member jury
of showing obscene films. The court imposed a suspended prison sentence of
two consecutive seven- month terms and fined him $1,000.
ii. Question: Does a conviction by a nonunanimous six-member jury in a state
criminal trial for a nonpetty offense violate the accused's right to a trial by jury
as protected by the Sixth and Fourteenth Amendments?
iii. Conclusion: The Court found that convictions by the nonunanimous sixmember jury violated the Constitution. Tracing the development of the Court's
considerations of this issue, Justice Rehnquist indicated that Burch's case sat at
the "intersection of our decisions concerning jury size and unanimity."
Rehnquist relied on the Court's holding in Ballew v. Georgia (1978) and the
practices in several of the states to find against convictions by nonunanimous
juries of six members. Only two of the states that used six-member juries in
trials for petty offenses allowed verdicts to be less than unanimous. This "near
uniform judgment of the Nation" of the inappropriateness of this jury
arrangement, argued Rehnquist, provided the Court with a "useful guide" in
determining constitutionally allowable jury practices.
c. Strauder v. West Virginia (1880)
i. Jury = “drawn from a fair cross section of the community”
d. Taylor v. Louisiana (1975)
i. Cannot discriminate against groups in the community
e. Miller-El v. Dretke (2005)
i. Cannot discriminate by “the pigmentation of skin, the accident of birth, or the
choice of religion”
ii. "selection process was replete with evidence that prosecutors were selecting
and rejecting potential jurors because of race." -- black
f. Explain how to serve as a juror
2. “Change of venue”
a. People are prejudice towards you
3. May waive a jury trial
a. One Lot Emerald Cut Stones and One Ring v. United States (1972)
i. Judge can force jury trial even if defendant waives the right
b.
d.
Define bench trial
i. Judge alone hears the case
Explain the right to an adequate defense
i. Defendant has the right:
1. To be informed of the nature and cause of the accusation
2. To be confronted with the witnesses against him, and question them in open court
3. To have compulsory process for obtaining witnesses in his favor (that is, favorable witnesses can
be subpoenaed, or forced to attend)
4. To have the Assistance of Counsel for his defense
ii. Gideon v. Wainwright (1963)
1. A defendant must have the attorney if he/she wants one (even if you cannot afford one)
2. Usually a lawyer from the local community or a private legal aid association that provides
counsel
3. Now, more and more come from local tax dollars
iii. Confrontation Clause
1. Pointer v. Texas (1965)
a. Petitioner was arrested and brought before a state judge for preliminary hearing on a
robbery charge. The complaining witness testified but petitioner, who had no counsel,
did not cross-examine. Petitioner was later indicted and tried. The witness had moved to
another State, and the transcript of his testimony at the hearing was introduced over
petitioner's objections that he was denied the right of confrontation. He was convicted
and the highest state court affirmed.
b. You have the right to be confronted with the witnesses against him, and question them
in open court
2. Smith vs. Illinois (1968) – Confrontation Clause
a. Addressed the issue of whether or not the state could introduce as evidence, statements
obtained from an undercover police informant, against a defendant charged with selling
drugs. The state would not produce the witness (undercover police informant) in person
because it said that revealing his identity would undermine the secretive nature and
strategies used by the police department.
3.
The defendant claimed that his 6th Amendment Confrontation Clause right to
confront the witness had been violated in his trial and that the conviction should be
thrown out. The Court agreed with the defendant. The right to cross-examine a witness
is absolute.
Bruton vs. United States (1968)
a. In this case, the two defendants, Bruton and Evans, were charged with armed postal
robbery. During the trial, a postal inspector said that Evans had confessed to him that
both he and Bruton had committed the crime. Neither Evans nor Bruton took the stand
in the trial. When the jury was deliberating its decision, the judge instructed them that
the hearsay testimony of the postal inspector could not be used as evidence against
Bruton, and they should disregard this statement when making their decision. He also
told them that the statement could be used against Evans himself.
The principle being addressed here is that Bruton's defense attorney could not crossexamine the witness, Evans, who allegedly made the statement, because Evans was not
going to take the stand! This violated Bruton's 6th Amendment Confrontation Clause
right to cross-examine the witness!
The first court found Evans and Bruton guilty. The Supreme Court ruled that the
conviction against Bruton had to be thrown out because his Confrontation Clause right
to cross-examine the witness had been violated. Later, by the way, the conviction
against Evans was thrown as well, based on other violations.
This was an important case because it is a favorite trick of prosecutors to conduct a joint
trial and use witnesses’ statements against each other. The statements can't be used by
the jury if the witnesses aren't taking the stand, but the jury heard them anyway and the
statements might influence them even though they are told to disregard them. Although
there are exceptions, this ruling has eliminated many joint trials.
4.
Washington v. Texas (1967)
1. Petitioner and another were charged with a fatal shooting. Petitioner's alleged coparticipant was tried first and convicted of murder. At petitioner's trial for the same
murder, he sought to secure his co-participant's testimony, which would have been vital
for his defense. On the basis of two Texas statutes which, at the time of trial, prevented a
participant accused of a crime from testifying for his coparticipant (but not for the
prosecution), the judge sustained the State's objection to the coparticipant's testimony.
Petitioner's conviction ensued, and was upheld on appeal.
2. Unconstitutional to deny the ability to obtain witnesses in his favor
iv. Escobedo v. Illinois (1964)
1. Danny Escobedo, picked up for questioning in his brother-in-laws murder, asked
numerous times for an attorney. Police denied requests, even though his lawyer was in
the police station and was trying to see him. Escobedo made numerous damaging
statements.
2. Unconstitutional (freed then from jail)
i. Became a drifter. Arrested in 2001 for probation violation and was a suspect in
a 1981 stabbing murder.
v. Scott vs. Illinois (1979)
1. A case involving a defendant who was convicted of shoplifting and fined $50 in a bench trial.
The applicable Illinois law stated that the maximum penalty for the crime was a $500 fine or one
year in jail, or both. The defendant appealed the case claiming that his 6th Amendment right to
counsel had been violated because he did not have personal means to hire an attorney and the
court had not appointed one for him.
The Court disagreed with the defendant. Before this case, the Court's rule had been that if
imprisonment was even a possible punishment, the defendant was entitled to appointed counsel.
In this case, the Court ruled that just the fact that imprisonment was a possible punishment alone
did not require that an attorney be appointed. Instead, the Court said that imprisonment must be
the actual sentence laid down in order to require the court to appoint an attorney for the
defendant.
vi. Halbert v. Michigan (2005)
Facts of the Case
Halbert pleaded no contest in a Michigan court to two counts of criminal sexual conduct. The day
after Halbert's sentence was imposed, Halbert moved to withdraw his plea. The trial court denied the
motion and told Halbert the property remedy for his complaint was the state appellate court. Michigan
required a defendant convicted on a guilty or no contest plea to apply for leave of appeal to the state
appellate court. Halbert asked the trial court twice to appoint counsel to help him with his application.
The trial court refused. Without counsel, Halbert still applied for leave to appeal, which the court of
appeals denied. The state supreme court also denied Halbert's application for leave to appeal to that
court.
Question
Did the due process and equal protection clauses require the appointment of counsel for defendants,
convicted on their pleas, who sought access to a Michigan appellate court?
Conclusion
Yes. In a 6-3 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that the due process
and equal protection clauses required Michigan to provide counsel for defendants who wanted to
appeal to the state appellate court. The Court reasoned that if indigent defendants convicted on their
pleas did not have counsel to guide them through Michigan's complex appellate process, their right to
appeal would not be meaningful.