CIVIL LIBERTIESCIVIL LIBERTIES

Difference Between Difference Between Civil Liberties and Civil Liberties and

Civil Rights?Civil Rights? Civil RightsCivil Rights

Freedom from governmental discrimination (unequal Freedom from governmental discrimination (unequal treatment).treatment).

Bill of RightsBill of Rights The first 10 amendments of the Constitution, which form the The first 10 amendments of the Constitution, which form the

basis of civil liberties.basis of civil liberties. Civil libertiesCivil liberties

Freedoms that citizens enjoy from government interferenceFreedoms that citizens enjoy from government interference Freedom of speech, press, assembly, and religion; Freedom of speech, press, assembly, and religion;

guarantees of due process and other protections given to guarantees of due process and other protections given to criminal defendants.criminal defendants.

Understand the difference?Understand the difference? Right to assembly = civil liberty. BUT if government decides Right to assembly = civil liberty. BUT if government decides

only people with red hair can assemble and others could not, only people with red hair can assemble and others could not, that would be discrimination and a violation of civil rights.that would be discrimination and a violation of civil rights.

Protection of individual Protection of individual rights applies to ….rights applies to ….

ALL PERSONS,ALL PERSONS, aliens aliens a/w/a citizensa/w/a citizens

BUT…BUT… KOREMATSU v. U.S.KOREMATSU v. U.S. – –

1944, rights can be 1944, rights can be suspended if ….suspended if ….

What about the What about the question question of education of illegal of education of illegal aliens?aliens?

PLYER v. DOEPLYER v. DOE,, 1982 1982 TX could not deny funding for TX could not deny funding for

education to children who education to children who were illegal immigrants (5-4 were illegal immigrants (5-4 decision)decision)

The right to an education is based on where a person lives, not their alien status.

The Bill of Rights & the States: The Bill of Rights & the States:

The Original UnderstandingThe Original Understanding The Bill of Rights originally thought to limit ONLY

the power of the national government … not the power of the states. Barron v. Baltimore (1833) 5th Amendment eminent domain case – Barron

damaged by action of city of Baltimore (“took” land – his wharf - w/o compensation)

Court held that Bill of Rights restrained ONLY the national government – they did not restrain states and cities – city of Baltimore wins.

Some felt Court had gone too far in saying states & cities were not restrained by ANY of Bill of Rights.

Gitlow v. New York, 1925Gitlow v. New York, 1925 Free Speech & press caseFree Speech & press case

(anarchist/socialist speech/leaflet)(anarchist/socialist speech/leaflet) What happened in the case?What happened in the case? Began the Began the “incorporation doctrine”“incorporation doctrine”

Says most of the protections in the Bill of Rights Says most of the protections in the Bill of Rights are also covered by the 14are also covered by the 14thth Amendment’s due Amendment’s due process clause and therefore also apply to the process clause and therefore also apply to the statesstates

What is incorporation?What is incorporation? Applying the Bill of Rights to the states.Applying the Bill of Rights to the states. Means that an amendment limits not only the Means that an amendment limits not only the

federal government, but the state governments as federal government, but the state governments as well.well.

Total incorporationTotal incorporation: making every specific provision : making every specific provision of the Bill of Rights applicable to the states.of the Bill of Rights applicable to the states.

Selective incorporation: Selective incorporation: making only the most making only the most essential provisions applicable to the states.essential provisions applicable to the states.

SELECTIVE SELECTIVE INCORPORATION & THE INCORPORATION & THE

1414THTH AMENDMENT AMENDMENT Selective Incorporation Selective Incorporation iis the process that has

evolved, through court cases and rulings, used by SCOTUS to insure the rights of the people are not violated by state laws or procedures. Protections are incorporated (applied) to the

states, on a case-by-case basis, via the 14th Amendment.

The cases that apply the Bill of Rights to the states.

Fourteenth AmendmentFourteenth Amendment, Sec. One, prohibits , Sec. One, prohibits any state from depriving "any person of life, any state from depriving "any person of life, liberty, or property, liberty, or property, without due process of without due process of lawlaw."."

DUE PROCESS

5TH Amendment says FederalFederal government may not deprive a person of life, liberty or property without due process of law

1414thth Amendment Amendment places this same restriction on the StatesStates

“Due Process” simply means gov’t cannot deny rights to any person that are considered basic/essential to the American concept of ordered liberty. Your right to fair treatment. Government must respect all

of the legal rights that are owed to a person according to the law.

Two Types of Due Two Types of Due ProcessProcess

DUE PROCESS Two types:

Procedural due process – deals with HOW the gov’t acts Gov’t has to act fairly & within the rules – for Gov’t has to act fairly & within the rules – for example, you have the right to be notified of example, you have the right to be notified of charges or proceedings, Miranda warnings, the charges or proceedings, Miranda warnings, the opportunity to be heard at these proceedings, opportunity to be heard at these proceedings, and right to an attorney, etc.and right to an attorney, etc.

Substantive due process provides that the laws, policies, rules of gov’t must be fair --- the “WHAT” Rights that reserve to the individual the power Rights that reserve to the individual the power to possess or to do certain things, despite the to possess or to do certain things, despite the government’s desire to the contrary- freedom of government’s desire to the contrary- freedom of speech and religion, etc. speech and religion, etc.

By the 60s, most of Bill of Rights were By the 60s, most of Bill of Rights were incorporated.incorporated.

““Selective” Incorporation Selective” Incorporation though because though because only certain rights have been selected and only certain rights have been selected and incorporated via the 14incorporated via the 14thth Amendment. Amendment.Most recent incorporation – 2Most recent incorporation – 2ndnd Amendment AmendmentWhich ones have Which ones have NOTNOT been incorporated? been incorporated?

All

Right to indictment by grand jury

Do you understand Do you understand selective incorporation?selective incorporation?

Initially, the United States Constitution did little to protect citizens from actions of the states. In the twentieth century, the Supreme Court interpreted the Constitution to protect the right of citizens from state governments in a process called incorporation.

 (a) Define selective incorporation. (2 points) (b) For TWO of the following, EXPLAIN how each has

been incorporated. Each of your explanations must be based on a specific and relevant Supreme Court decision. (4 points)

First Amendment Rights of criminal defendants Privacy rights

Which of the following is true about the Bill of Rights?

A. It enumerates the power of the federal government to pass laws protecting individual rights.

B. It enumerates the power of state governments to pass laws protecting individual rights.

C. It limits the power of state governments. D. It limits the power of the federal

government.

Do you understand selective Do you understand selective incorporation?incorporation?

What was the Supreme Court's decision in Barron v . What was the Supreme Court's decision in Barron v . Baltimore?Baltimore?

A) A) The Bill of Rights did not restrict the actions of The Bill of Rights did not restrict the actions of state governments.state governments.

B) B) All citizens are entitled to substantive due process.All citizens are entitled to substantive due process. C) C) The direct incitement test is consistent with the The direct incitement test is consistent with the

First Amendment's guarantee of freedom of speech. First Amendment's guarantee of freedom of speech. D) D) Government can not infringe on citizens' Government can not infringe on citizens'

"fundamental freedoms.“"fundamental freedoms.“ E) E) The incorporation doctrine is an unconstitutional The incorporation doctrine is an unconstitutional

infringement on states’ rights.infringement on states’ rights.

FREEDOM OF RELIGIONFREEDOM OF RELIGION

Fundamental belief is that free expression, including freedom of religion, is necessary to a free society.

What’s the difference between What’s the difference between the establishment and free the establishment and free

exercise clauses?exercise clauses?

Is it actually in the Constitution?Is it actually in the Constitution?

Two Clauses: Establishment and Free Exercise

Establishment Clause: Controversy: does it simply prohibit

favoring one religion over another?.... OR Jefferson’s “wall of separation” between

church and state? the wall prohibited not only favoritism

of a particular religion, but also ANY support for ANY religion at all.

Read the clause – what do you think? “Congress shall make no law

respecting an establishment of religion….”

Lemon v. Kurtzman, Lemon v. Kurtzman, 19711971 Landmark case on government

aid to church-related schools Was NOT allowed in this case Court set out 3 pronged “Lemon”

test:1. Aid must have a secular

purpose2. Primary effect must not

advance nor inhibit religion3. Must not create excessive

gov’t “entanglement” with religion

So, is government support of religious schools establishing religion? Courts apply the “Lemon Test” to

determine.

NAISN

E!

Permissible “religious” Permissible “religious” activities:activities:

Gov’t aid for textbooks, equipment, lunches, at parochial schools but NOT teacher salaries – why not?

Can schools deny religious meetings on campus? NO - 1984 Equal Access Act: schools that

receive federal funds must allow student religious meetings on campus if it opens its doors to other student meetings

Can schools subsidize religious publications? YES, if they subsidize other student group

publications; U of VA was required to subsidize student religious magazine just like it did other student publications - 1995

SCHOOL PRAYER –ESTABLSHMENT CLAUSE:

Engle v. Vitale, 1962Engle v. Vitale, 1962 Forbids the sponsorship or

encouragement of prayer by public school officials

State officials had written non-sectarian prayer to be recited by NY schoolchildren at beginning of day; ACLU brought case

Court said religious beliefs were embodied in it even though not explicit

Same ruling in Abbington Abbington School District v. SchemppSchool District v. Schempp, 1963 – PA law that allowed a Bible passage to be read at beginning of day held unconstitutional

Gallup polls show that majority of Gallup polls show that majority of American public has never supported American public has never supported Court’s opinion on school prayer Court’s opinion on school prayer

Has it gone too far – has it gone far Has it gone too far – has it gone far enough?enough? 19921992 – school sponsored prayer at – school sponsored prayer at

graduation held to be unconstitutional; graduation held to be unconstitutional; again in 2011again in 2011

20002000 – student-led prayer at football game – student-led prayer at football game held to be unconstitutionalheld to be unconstitutional

Other Establishment issues:

LA required schools to teach creation science in addition to Darwin – Sup. Ct. struck it down in 1987.

Displays of religious symbols a confusing issue: Nativity scenes CAN be

okay …. Case by case basis…allowed sometimes if Santa Claus, or other secular symbols, there also

Ten Commandments generally not allowed to be posted in public buildings … BUT, conflicting 2005 cases.

Oklahoma Supreme Court most recently ruled to remove a Ten Commandments statue on state grounds.

FREE EXERCISE CLAUSE ““Congress shall make no law respecting an Congress shall make no law respecting an

establishment of religion, or prohibiting the free establishment of religion, or prohibiting the free exercise thereof…”exercise thereof…”

Free Exercise clause protects individuals’ right to BELIEVE – but not to DO – whatever they wish.

What kinds of actions might society find necessary that are forbidden by certain religions – or vice versa? Mormons –– Ct. held in Reynolds v. U.S. that

practice of polygamy impaired the public interest and denied Mormons this “religious” practice.

Amish – Ct. held in Wisconsin v. Yoder that Amish children CAN be released from compulsory education after 8th grade

FREE EXERCISE CLAUSE Santeria case, Hialeah,

FL: Are animal sacrifices part of

“free exercise” of religion? Court said yes in this case The Hialeah ordinances

failed because they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith.

What about Christian Scientists & their beliefs?

11STST AMENDMENT AMENDMENT RESTRICTIONSRESTRICTIONS

SPEECH:: Some speech is Some speech is UNPROTECTED – for example?

obscenity, child pornography, defamatory speech, and seditious speech.

Courts have to apply “balancing test” in determining permissible or impermissible speech.

What do they balance freedom of speech/expression against?

competing values like public order, national security, right to a fair trial, etc.

Courts also have to decide what “speech” actually is.

FREEDOM OF SPEECH & PRESS What is the difference

between libel and slander? Both concern false and

malicious use of words NOT protected speech

Libel = written defamatory words Slander = spoken defamatory words False words that cause injury/damage to

one’s good name/reputation Landmark Supreme Court Case:

NY Times v. Sullivan (1964) – facts of the case?

Statements about public figures are libel ONLY if made with malice & reckless disregard for the truth

Seditious speech is NOT protected either.

Schenck v. the U.S. (1919) Socialist party official

urging men drafted in WWI to resist service

Court found the speech was seditious, unprotected

But, also set “clear and present danger doctrine”

Slight change in Brandenburg v. Ohio (1969)

Can advocate overthrow in abstract; just can’t incite action toward it

OBSCENITY not protected either Landmark Supreme Court Cases: Roth v. U.S. (1957) Miller v. CA (1973)

Obscenity “defined” Decisions are made based on local community

standards 3 pronged test of Miller to define obscenity:

1. average person finds the material to incite lust (prurient)

2. depicts/describes offensive sexual contact3. work lacks serious artistic value or literary, political,

scientific Problems: there’s no nationwide definition of

“offensive” or consensus that adults should be protected from it

Laws protecting kids from it are always upheld though

FREEDOM OF THE PRESS Speech and Press generally get

the same protective standards Supreme Court allows much in Supreme Court allows much in

way of parody or lampooning of way of parody or lampooning of public figures:public figures:

Falwell v. HustlerFalwell v. Hustler “first time” case “first time” case Ads about the “First Time” to Ads about the “First Time” to

drink Campari (a liqueur)drink Campari (a liqueur) Hustler magazine printed Rev. Hustler magazine printed Rev.

Jerry Falwell having had his Jerry Falwell having had his first time in an outhouse with his in an outhouse with his mother.mother.

Ct. held that publishers can go Ct. held that publishers can go very far with the use of parody very far with the use of parody and ruled in favor of Hustler.and ruled in favor of Hustler.

Can the government stop publication by the press in advance?

Generally, NO! Known as “Prior Restraint”

= pre-publication censorship by gov’t Landmark case: Near v. MinnesotaNear v. Minnesota,

1931 newspaper officials called local officials newspaper officials called local officials

“Jewish gangsters” – got shut down“Jewish gangsters” – got shut down Ct. ordered paper reopened.Ct. ordered paper reopened.

Court generally disallows prior restraint even in national security situations:

Pentagon Papers case: NY Times v. U.S., 1971 Nixon sought injunction to stop publication

of leaked Pentagon papers … claimed national security

Ct. disagreed and ruled in favor of paper

What about censorship in schools? Is it allowed?

Court DOES allow prior restraint in public schools – DO have power of censorship

Landmark Case: Hazelwood School

District v. Kuhlmeier (1988)

School newspaper not a“public forum”

Regulation (censorship) allowed –school has basic educational mission that can’t be interfered with

THE MEDIATHE MEDIAFREE SPEECH/PRESSFREE SPEECH/PRESS

Absolute right to cover trials Reporters & sources & testimony:

Some states, including FL, have passed “shield laws” to protect reporters from testifying & revealing sources, but they can be overcome and reporters forced to testify

Reporters are NOT protected federally Landmark Supreme Court Case:

Branzburg. V. Hayes (1972) In absence of shield laws, right of a fair

trial supersedes a reporter’s right to protect his sources & he has to provide them if asked

Can be protected Tinker v. Des Moines School

District (1969) Three public school students Three public school students

protesting the Vietnam War came protesting the Vietnam War came to class wearing black armbands.to class wearing black armbands.

The principals said that all The principals said that all students wearing armbands would students wearing armbands would remove them or face suspension. remove them or face suspension.

When they refused to remove When they refused to remove them, the students were them, the students were suspendedsuspended

SCOTUS held in a 7-2 decision that SCOTUS held in a 7-2 decision that the wearing of the armbands IS the wearing of the armbands IS protected by the First Amendment.protected by the First Amendment.

SYMBOLIC SPEECH

“…students do not shed their rights at the schoolhouse gate.”

During the 1984 Republican National Convention in During the 1984 Republican National Convention in Dallas, Texas, Johnson participated in a political Dallas, Texas, Johnson participated in a political demonstration to protest the policies of the Reagan demonstration to protest the policies of the Reagan administration. After a march through the city administration. After a march through the city streets, Johnson burned an American flag in front of streets, Johnson burned an American flag in front of City Hall while protesters chanted. City Hall while protesters chanted.

No one was physically injured or threatened with No one was physically injured or threatened with injury, although several witnesses were seriously injury, although several witnesses were seriously offended by the flag burning.offended by the flag burning.

Other Protected “Expressions”Other Protected “Expressions”Texas v. Johnson Texas v. Johnson

SCOTUS held that burning the flag was “freedom of expression” – symbolic speech

Much criticism of this decision

Flag Protection Act, 1989 … struck down in 1990

Free Speech & the SchoolsFree Speech & the SchoolsBethel School District v.

FraserStudent Matthew Fraser delivered a Student Matthew Fraser delivered a speech to 600 high school students in speech to 600 high school students in support of a friend’s campaign for student support of a friend’s campaign for student council during a school assembly.council during a school assembly.The speech was sexually suggestive using The speech was sexually suggestive using graphic and explicit sexual metaphor.graphic and explicit sexual metaphor.Some students were embarrassed Some students were embarrassed Many students hooted and yelled during Many students hooted and yelled during the speech or mimicked the sexual the speech or mimicked the sexual activities alluded to in the speech.activities alluded to in the speech.The next day, the principal suspended The next day, the principal suspended Fraser for violating the Disruptive Fraser for violating the Disruptive Conduct Rule which prohibited the use of Conduct Rule which prohibited the use of obscene or profane language or gestures.obscene or profane language or gestures.

• School wins.• The First

Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."

FREEDOM OF ASSEMBLY & PETITION

Right to assemble guaranteed BUT Government regulation can be imposed:

Time, place, manner regulations Why? Whose interests are being

protected? Would it be a good idea for the KKK to

hold a rally in Pine Hills? These regulations are particularly

imposed near schools and churches Rules on assembly must be “content neutral” – meaning?

Is the KKK entitled to hold rallies? Harassment not allowed Trespassing not allowed

“Right of Association” SCOTUS has held that the right to assembly

also includes the right to associate with people sharing common interests with you

NAACP v. Alabama (1958)AL wanted NAACP membership listSCOTUS said no!

Boy Scout case, 2000 scouts CAN exclude homosexuals…. opposition to homosexuality is part of what Boy

Scouts stand for – part of their expressive conduct BUT, how did the Boy Scouts later change their

rules?

RIGHT TO PRIVACY NOT specifically guaranteed

in Bill of Rights But, Court has now deemed

it to be included/implied by a “penumbra” of guarantees in the Bill of Rights Right to exercise private

religious beliefs Right to be protected in homes

from unreasonable search and seizure

14th amendment SUBSTANTIVE due process If the substance of the law – the very point of the

law – violates some basic right, even one not listed in the Constitution, then a court can declare it unconstitutional

If government policies violate your substantive due process, they must have a valid interest in regulating health, welfare or morals

Your right to be left alone by the government!!

RIGHT TO PRIVACY First appears in 1965 contraceptives case,

Griswold v. CT: 1879 CT law forbade the use of

contraceptives (trying to put an end to adultery)

Court ruled that family planning (i.e., birth control) is private between husband & wife and protected by the Constitution

A 1972 case extended the same right (under equal protection clause of 14th amendment) to unmarried couples as well

What about your trash? Can your trash be searched?

RIGHT TO PRIVACY

Most controversial application of privacy rights is with the issue of ABORTION Roe v. Wade – 1973

Ct. followed medical trimesters No state control allowed in 1st

trimester 2nd trimester – only to protect

mother Banned it during 3rd trimester

UNLESS mother’s life or health in danger

Are “partial-birth” abortions allowed?

April 2007 decision in Gonzales v. Carhart, SCOTUS upheld the federal Partial-Birth Abortion Ban Act of 2003 – there is no health exception.

Won by Love: Norma McCorvey, Jane Roe of Roe V. Wade, speaks out for the unborn as she shares her new conviction for life .

Test over state control of abortion originally WAS one of “strict scrutiny” of any restraints on a “fundamental right”

BUT, test of state control now is one of “undue burden,” not the trimesters of Roe

Planned Parenthood v. Casey, 1992 State CAN place reasonable limits on State CAN place reasonable limits on

woman’s right to an abortion but they can’t woman’s right to an abortion but they can’t impose impose an undue burden an undue burden on her choice to on her choice to have the procedurehave the procedure

CAN require counseling, parent notification CAN require counseling, parent notification if a minor, 24 hour wait time, etc.if a minor, 24 hour wait time, etc.

Florida & AbortionFlorida & Abortion Restrictions in effect as of April 2013: Health plans offered under Healthcare Reform Act can

only cover abortion in cases when the woman's life is endangered, rape or incest

The parent of a minor must be notified before an abortion is provided.

Public funding is available for abortion only in cases of life endangerment, rape or incest.

Ultrasound required beforehand - the provider must offer her the option to view the image. In Florida, 381,500

of the 3,505,482 women of reproductive age became pregnant in 2008.

61% of these pregnancies resulted in live births

25% in induced abortions.

RIGHT TO DIE? Is there a right to choose to die ? Cruzan v. Director, MO Dept. of Health, 1990

Individuals DO have the right to right to refuse medical treatment under the due process clause

BUT incompetent persons (e.g., in vegetative state) are NOT capable of making that decision

Need “clear and convincing evidence” that they would desire medical treatment to be withdrawn

Can parents choose to let their children die? This was the problem in the Terry Schiavo case in

FL – she had no directive lasted from 1990 to 2005 Case was in court over 20 times & each time the Court ruled that Terri’s fate was under her husband's control

Can parents choose to let their children die?

Assisted Suicide?Assisted Suicide? Court ruled in 1997 that there Court ruled in 1997 that there

is NO constitutional right to is NO constitutional right to physician-assisted suicide and physician-assisted suicide and that states may prohibit itthat states may prohibit it

Jack Kevorkian claimed to have Jack Kevorkian claimed to have assisted over 130 patients do so assisted over 130 patients do so – arrested, convicted of 2– arrested, convicted of 2ndnd degree murder, served 8 years degree murder, served 8 years (sentence of 10-25 years).(sentence of 10-25 years). Released on parole on June 1, 2007, on Released on parole on June 1, 2007, on

condition he would not offer suicide condition he would not offer suicide advice to any other person.advice to any other person.

Died at age 83 in 2011 – liver Died at age 83 in 2011 – liver problems/Hep C/kidney problems/Hep C/kidney problems/pneumonia/blood clotproblems/pneumonia/blood clot

Death With Dignity ActsDeath With Dignity Acts 5 states have now passed some 5 states have now passed some

type of Death with Dignity Actstype of Death with Dignity Acts NM, VT, MT, OR, WANM, VT, MT, OR, WA CA CA has passed a similar act, has passed a similar act,

but not yet in effect.but not yet in effect. These acts allow mentally These acts allow mentally

competent individuals with a competent individuals with a terminal illness (6 months or terminal illness (6 months or less to live) to end their lives less to live) to end their lives through voluntary self-through voluntary self-administration of lethal administration of lethal medications that are expressly medications that are expressly prescribed by physicians for prescribed by physicians for that purpose.that purpose.

CIVIL LIBERTIES & NATIONAL CIVIL LIBERTIES & NATIONAL SECURITYSECURITYHow has the war on terror affected How has the war on terror affected your civil liberties?your civil liberties?

USA Patriot ActUSA Patriot Act Personal Liberty?Personal Liberty?

Oct. 26, 2001 - made it easier to Oct. 26, 2001 - made it easier to conduct surveillance of suspected conduct surveillance of suspected terroriststerrorists

Permitted gov’t surveillance on Permitted gov’t surveillance on telephone and e-mailtelephone and e-mail

Authorized detention and deportation of Authorized detention and deportation of suspected immigrantssuspected immigrants

Government agencies now share infoGovernment agencies now share info New Department of New Department of

Homeland SecuriHomeland Securityty protect borders and find attackersprotect borders and find attackers gov’t holds immigrants without habeas gov’t holds immigrants without habeas

corpus (Guantanamo); has been corpus (Guantanamo); has been overruledoverruled

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTSAmendments: 4, 5, 6, 8Amendments: 4, 5, 6, 8

Recall: Recall: What is a defendant?What is a defendant? It’s It’s plainplain, I’m , I’m tifftiffed (plaintiff/prosecutor is ed (plaintiff/prosecutor is

the angry one)the angry one) So the other individual (or org./biz) must So the other individual (or org./biz) must

defenddefend her/ hisself—DEFENDant her/ hisself—DEFENDant Hold up, Hold up, Why would we give rights to ppl Why would we give rights to ppl

accused of crimes?accused of crimes? To avoid convicting innocent pplTo avoid convicting innocent ppl All criminal suspects have the right to due All criminal suspects have the right to due

process of the law and fair treatmentprocess of the law and fair treatment

DEFENDANT’S DEFENDANT’S

RIGHTSRIGHTSAmendments: 4, 5, Amendments: 4, 5,

6, 86, 8

DEFENDANT’S RIGHTS55thth Amendment Amendment

Right to indictment (accusation) byby grand jurygrand jury Applies only to “serious” crimes“serious” crimes

determined by nature of punishment that may be imposed; capital offenses require grand juries

Operate in closed (secret) deliberation (secret) deliberation proceedingsproceedings

No attorneys present for defendants, no exclusionary rule, etc.

Can call and examine witnesses w/o telling why

Has NOT been incorporated NOT been incorporated to statesstates under 14th Amendment – so can be abolished by states…replaced in many by preliminary hearings insteadpreliminary hearings instead

Prohibition against Double Jeopardy Can’t be tried for the same crime

twiceUNLESS…what would be the exception?

Right againstagainst self-incriminationself-incrimination in any proceeding that could lead to a criminal charge (federal or state)

Doesn’t just apply to trial - starts with arrest!

MIRANDA v. ARIZONAMIRANDA v. ARIZONA, 1966, 1966

DEFENDANT’S RIGHTS55thth Amendment Amendment

Mirandav.

Arizona Multiple kidnapping/rape/robbery accusations Finally arrested and picked out of a line-up Confessed after 2 hrs. of police interrogationConfessed after 2 hrs. of police interrogation Had not been informed of his rights.Had not been informed of his rights. The Supreme Court set aside Miranda's Supreme Court set aside Miranda's

convictionconviction, which was tainted by the use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again anyway. He was sentenced to 20 to 30 years in prison.

What happened to Miranda?

Right to a “fair and speedy trial” right to confront a witness against youconfront a witness against you right to a witness in your favorwitness in your favor right to assistance of counselcounsel in your

defense right to be tried in district where crime tried in district where crime

was committedwas committed right to be informed of the charges informed of the charges

against you right to a PUBLIC trial PUBLIC trial - WHY?

DEFENDANT’S RIGHTS:DEFENDANT’S RIGHTS:66thth Amendment Amendment

But trial can’t be TOO public … i.e., allowing for mobs, etc.The dilemma with tv cameras is that the courtroom is a public place where press is allowed, HOWEVER…• Media cannot interfere with “fair” trialMedia cannot interfere with “fair” trial• JudgeJudge gets to makemake the call on call on the media media

vs. “fair”vs. “fair”

6th AMENDMENT:Right to an Attorney

““Fair” trial includes Fair” trial includes right to an right to an attorneyattorney

Landmark Supreme Court Cases:Landmark Supreme Court Cases: Gideon v. WainwrightGideon v. Wainwright (1963) – (1963) – right right

to attorneyto attorney at trial for any criminal at trial for any criminal action (FL law only required state to action (FL law only required state to appoint attorneys for capital offenses) – appoint attorneys for capital offenses) – extended to state courtsextended to state courts

Escobedo v. IllinoisEscobedo v. Illinois (1964) - (1964) - & in & in police interrogationpolice interrogation

Miranda v. ArizonaMiranda v. Arizona (1966) (1966) – also – also rules in favor of rules in favor of right to secure counselright to secure counsel

REVIEW:REVIEW:The “Miranda Warning” represents an The “Miranda Warning” represents an attempt to protect criminal suspects againstattempt to protect criminal suspects againstA.A.Unfair police interrogationUnfair police interrogationB.B.Biased jury selectionBiased jury selectionC.C.Imprisonment without trialImprisonment without trialD.D.Illegal wiretappingIllegal wiretappingE.E.Unjustified police surveillanceUnjustified police surveillance

A. Unfair police interrogationA. Unfair police interrogation

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTS44thth Amendment Amendment

As a British colony:As a British colony: Smugglers attempted Smugglers attempted

to avoid taxesto avoid taxes British soldiers used British soldiers used

writs of assistancewrits of assistance (blanket search (blanket search warrants) to search warrants) to search any warehouse, any warehouse, vessel, or home at vessel, or home at any timeany time

Post Independence:Post Independence: 44thth Amendment: Amendment: Right to be Right to be

secure in your persons, secure in your persons, homes, papers and homes, papers and protected against protected against unreasonableunreasonable search & search & seizureseizure.. Prevent emergence of Prevent emergence of

overpowering police stateoverpowering police state Requires courts to issue Requires courts to issue

search warrants under search warrants under probable cause probable cause (facts (facts that permit a reasonable that permit a reasonable belief that a crime has belief that a crime has been committed)been committed)

Established by SCOTUS (1914) in Weeks v. United States Exclusionary Rule: evidence the govt finds or Exclusionary Rule: evidence the govt finds or

takes in violation to 4takes in violation to 4thth Amendment can be Amendment can be excluded from trialexcluded from trial

Has been changed over time to extend to the states - Landmark Supreme Court Case: Mapp v. Ohio (1961): exclusionary rule exclusionary rule

incorporated/applicable to statesincorporated/applicable to states Police can obtain only evidence found

through a legitimate search warrant & any other evidence found (unless “in plain view”) is inadmissible.

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTSExclusionary RuleExclusionary Rule

Note: Supreme Ct. has found some exceptions to the rule:exceptions to the rule: Consent of individual being searched or being arrestedConsent of individual being searched or being arrested Searched in airports and US bordersSearched in airports and US borders evidence in “plain view”evidence in “plain view” Wingspan ruleWingspan rule: other things the person being arrested : other things the person being arrested

could touch or reach could touch or reach CJ Burger:

Inevitable Discovery Inevitable Discovery (1984): police find evidence in unlawful search but would have later made the same discovery in a lawful search

Good Faith Good Faith (1984): police searches under court-issued warrant that is later proven unconstitutional or erroneous

Police conducted search under good faith they were following law and had not violated 4th Amendment

1995: rule does not exclude evidence obtained illegally as result of clerical error

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTSExceptions to Exclusionary RuleExceptions to Exclusionary Rule

DEFNDANT’S RIGHTSDEFNDANT’S RIGHTS44thth Amendment & Searches in Amendment & Searches in

SchoolsSchools AP finds TLO smoking AP finds TLO smoking

in bathroom and in bathroom and searches her pursesearches her purse

AP finds marijuana and AP finds marijuana and implications that TLO implications that TLO is dealingis dealing

SCOTUS upheld SCOTUS upheld decisiondecision school school admins greater degree admins greater degree of leeway than police of leeway than police

Officer does NOT need warrant to Officer does NOT need warrant to search car, boat, plane, etc. if there’s search car, boat, plane, etc. if there’s probable cause to believe it is probable cause to believe it is involved in illegal activities. involved in illegal activities. WHY?WHY?

1990s cases held that police who 1990s cases held that police who lawfully stop a car do not need a lawfully stop a car do not need a warrant to search anything in a car warrant to search anything in a car that they have reason to believe that they have reason to believe holds evidence of a crime – includes holds evidence of a crime – includes glove box, trunk, belongings of the glove box, trunk, belongings of the passengerspassengers

What about GPS tracking devices on vehicles?2012 Roberts Court-  police must obtain a warrant before placing a GPS tracking device on a vehicle.

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTS44thth Amendment and Automobiles Amendment and Automobiles

2012 case, 5/4 decision – jailers can 2012 case, 5/4 decision – jailers can use strip searches on people use strip searches on people arrested even for minor offenses. arrested even for minor offenses. Reasoning?Reasoning?

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTS44thth Amendment and Strip Amendment and Strip

SearchesSearches

Mandatory drug/alcohol testing of Mandatory drug/alcohol testing of employees involved in accidents employees involved in accidents held constitutional 1989held constitutional 1989

1995, SCOTUS ruled that 1995, SCOTUS ruled that mandatory drug testing of high mandatory drug testing of high school athletes was constitutionalschool athletes was constitutional

2002, SCOTUS extended 2002, SCOTUS extended permissibility for mandatory permissibility for mandatory testing to students in testing to students in extracurricular activities also – extracurricular activities also – band, chorus, etc.band, chorus, etc.

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTS44thth Amendment and Mandatory Amendment and Mandatory

Drug TestingDrug Testing

ReviewReviewToday, police can conduct searchesToday, police can conduct searches(a)(a)Only if a court issues a warrantOnly if a court issues a warrant(b)(b)If they have slight suspicion of wrongdoingIf they have slight suspicion of wrongdoing(c)(c)As long as they have probable cause of As long as they have probable cause of criminal activitycriminal activity(d)(d)In public schools at any time, for any reasonIn public schools at any time, for any reason(e)(e)If they follow provisions in the 2If they follow provisions in the 2ndnd AmendmentAmendment

C. As long as they have probable cause of criminal C. As long as they have probable cause of criminal activityactivity

1930-1960: 87% of death penalty sentences were for

murder 12% were for rape Today?

Strong majorities favor death penalty for premeditated murders

For: Deterrent to serious crime Satisfies society’s need for justice and fair

play Against

Not a deterrent Barbaric in a civilized society

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTSCapital Punishment (Death Capital Punishment (Death

Penalty)Penalty)

Applied to states through 14th amendment & is prohibited but not many cases on it (most are on capital punishment) Court usually rules against claim of cruel & unusual

Landmark Supreme Court Case: Gregg v. Georgia Gregg v. Georgia (1976) Held that death penalty NOT cruel & unusual

Exceptions: 2005: can’t execute minors (based on age at time of crime) 2002 : can’t execute mentally retarded

Minorities more likely than whites to get death penalty so does that make it “cruel and unusual?”

1987 decision said NO Baze v. Rees (2008)

Court held that KY’s lethal injection scheme did NOT violate the 8th Amend.

DEFENDANT’S RIGHTSDEFENDANT’S RIGHTS88thth Amendment: Cruel and Unusual Amendment: Cruel and Unusual

PunishmentPunishment

This June 18, 2010, file photo shows the firing squad execution chamber at the Utah State Prison in Draper, Utah. Ten years after banning the use of firing squads in state executions, Utah lawmakers on Wednesday, Nov. 19, 2014, endorsed a proposal to resurrect the practice in order to head off problems with the lethal injection drugs. 

Bail is $ accused required to post as guarantee that (s)he will appear in court at proper time What happens if you don’t show up in court? “Jumping bail” – you’ve just committed a separate

crime! Note: the Constitution does NOT guarantee a

right to bail, just that if it is set, it can’t be “excessive.” Why is bail even allowed?

“Excessive” is ruled to be amount higher than amount higher than necessarynecessary to insure defendant’s appearance at trial

Some defendants (no flight risk, etc.) released “on their own recognizance” – their own honor

DEFENDANT’S DEFENDANT’S RIGHTSRIGHTS

88thth Amendment: Bail Amendment: Bail

ReviewReviewThe Supreme Court’s contemporary The Supreme Court’s contemporary interpretation of the death penaltyinterpretation of the death penalty(a)(a)Prevents states from using the death penaltyPrevents states from using the death penalty(b)(b)Disregards international trends about Disregards international trends about executionsexecutions(c)(c)Focuses on the method of executionFocuses on the method of execution(d)(d)Prevents the practice because it is cruel and Prevents the practice because it is cruel and usual punishmentusual punishment(e)(e)Prevents state execution of minors and the Prevents state execution of minors and the mentally handicappedmentally handicapped

ee