Government – Libertyville HS Due Process. What is Due Process? Due Process is part of the Fifth...
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Transcript of Government – Libertyville HS Due Process. What is Due Process? Due Process is part of the Fifth...
Government – Libertyville HS
Due Process
What is Due Process?
Due Process is part of the Fifth Amendment (federal government)
Due Process is also part of the Fourteenth Amendment
DP protects a person from state / federal government from taking a person’s life, liberty or property without notice and a hearing
What is Due Process? What is “notice”?
The government must tell someone before it takes their property or liberty
Fundamental right – this MUST happen in a criminal or civil case
What is a “hearing”? The government must
give a person the opportunity to defend herself
What is Due Process? Examples of what Due
Process protection gives a person Right to a fair and public
trial Right to be present at
your own trial Right to an impartial
jury Right to testify at own
trial Laws must be written so
a reasonable person can understand them
What is Due Process?
Examples, continued Taxes may only be
taken for public purposes
Property may be taken by the government only for public purposes
Owners of taken property must be fairly compensation
What is Life, Liberty & Property?
Life = government lawfully executing a person
Liberty = government detaining or imprisoning a person FOR ANY REASON Stop on street Send to prison for life
Property = government taking your money or stuff
Due Process
The key to due process is making sure the
government treats people in a fundamentally fair way!
How Does Due Process Work? Step One: determine
interests of the government Ex 1– what are interests
of school when suspending someone? (discuss)
Maintaining a learning enviro
Safety of other students Ex 2 – what are interests
of government in a death penalty case? (discuss)
Punishing law breaker Preventing other serious
crime
How Does Due Process Work? Step Two: Determine how much “process” is
due in a given situation Due process is not rigid, but rather a flexible thing Depends upon situation Think of it as a balance between degree of loss of
person’s rights and importance of government’s interests
Two Parts of Due Process
Procedural due process Government must use
fair and just procedures whenever it wants to take away a person’s life / liberty / property
More procedures needed depending upon the amount of injury to a person’s life / liberty / property
Two Parts of Due Process
Substantive Due Process Government must
have a proper reason to take away a person’s life / liberty / property
This is the case regardless of the procedural due process followed!
Let’s Practice!: Question #1 Does a person have to talk with the police
at any time, in any situation? NO!
Never when conversation may implicate self in criminal activity (right against self incrimination)
If you are in custody, police must inform you of your constitutional right (1) to remain silent & (2) of your right to an attorney before questioning
But… Always good to talk to facilitate government
interest in law enforcement! AND your refusal to talk may lead police to
become suspicious
Lets Practice! Question #2 When can the police search a person’s home
or body? Government must have higher degree of
justification for higher degree of intrusion into liberty
Need… Search warrant based on probable cause, granted
by judge Warrant must specify what is to be searched /
seized Example: search warrant looking for AK-47 in
home; can police look in… Closet? Shoe box?
Let’s Practice! Question #2
Exceptions to Search Warrant requirement Safety of police (Terry “stop and frisk”) “hot pursuit” (ex. Pursuing someone into
house) Emergencies (ex responding to fire / call
for help) Search incident to arrest Consent of person being searched Plain view (where police are entitled to
enter, and violation of law is in plain sight)
Let’s Practice! Question #3
When may the police search my car? Search accessible interior of car stopped
for suspicious behavior During arrest of person in a car (driver
or passengers) may search accessible interior of car for safety and protection of police
“Inventory” search prior to impounding car (safety reasons)
If found pot in car, can be used as evidence BUT can’t open and search locked suitcase
Let’s Practice! Question #4 Can school officials search me or my
locker? Special responsibility that school has for all
students (education) Thus, schools have power to establish and enforce
rules to support a learning environment School officials act in place of parents (in loco
parentis); have obligation for safety, moral and educational development of students
School authorities have high interest in order, proper behavior
Students are usually minors w/o fully developed interests or rights
THUS – students have lower expectation of privacy while on school property
Let’s Practice! Question #4
So - Can school officials search me or my locker? On school property, officials only have to
show “reasonable suspicion” (lower degree of certainty) to justify search
Regarding lockers… What is student’s expectation of privacy?
Did student provide own lock, or does school possess keys to open all lockers?
Did school state that lockers were not private student areas?
Let’s Practice! Problem #5
Can school authorities conduct random drug tests of student athletes? How about random searches with drug sniffing dog? USSC – students have diminished
expectation of privacy in school School has strong interest in promoting
proper behavior, preventing drug use Drug tests not intrusive into student’s
privacy Similar analysis should apply to random
searches with drug sniffing dogs