Civil Liberties: Due Process And Procedural · PDF fileCivil Liberties: Due Process And Procedural Rights. ... • The individual being arrested ... privacy and his procedural due

Chapter Five

section 4

Civil Liberties:

Due Process

And Procedural Rights

Where does

‘Due Process’ come

from?

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The 5th Amendment (1791)

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

What is

‘Due Process’?

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Due Process

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Fairness in both the law

and the application of the law.

Two Types of Due Process

• Substantive Due Process• Procedural Due Process

Substantive Due Process

Fairness of the Law• Laws cannot violate your fundamental

constitutional rights:

Free SpeechFreedom of the PressFreedom of Religion

Right to MarryRight to Travel

Right to Privacy

Substantive Due Process

Fairness of the Law• Laws cannot violate your fundamental

constitutional rights:

without a compellinggovernment

interest

Procedural Due ProcessFairness of the Administration of

the Law

•Requirement for a Warrant•No double jeopardy•No self-incrimination•A public and speedy trial•A trial by impartial jury•Notice of accusations•Right to confront witnesses•Right to compel testimony•Right to assistance of counsel

Procedural Due ProcessFairness of the Administration of

the Law

Minimum standards:

• Notice

• Opportunity to be Heard

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The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


Selective Incorporation

• Fourth Amendment– Unreasonable search and seizure

• Wolf v. Colorado, 1949

– Warrant requirements• Ker v. California, 1963

– Right to Privacy• Griswold v. Connecticut, 1965

– Implied right derived from 3rd and 4th

Amendments


Search and Seizure

• Inclusionary

– Most legal systems currently use an inclusionary

search and seizure rule: all evidence is presented at trial, and police are punished later for evidence which was obtained improperly

• Exclusionary

– Exclude improperly gathered evidence from the trial even if it is relevant to determining guilt or innocence of the accused.


Weeks v US, 1914

• Facts of the Case– Police entered the home of Fremont Weeks without a

search warrant

– seized papers used to convict him of running a gambling operation across state lines.

• Question– Did this search and seizure violate the Fourth

Amendment?

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Weeks v US, 1914

• Facts of the Case– Police entered the home of Fremont Weeks without a

search warrant

– seized papers used to convict him of running a gambling operation across state lines.

• Question– Did this search and seizure violate the Fourth

Amendment?

• Conclusion– In a unanimous decision, the Court held . . . – the seizure of items from Weeks' home violated his

Fourth and Fifth Amendment rights. – This established the "exclusionary rule."


Mapp v. Ohio, 1961

• Facts of the Case– Dolree Mapp was convicted of possessing obscene materials after

an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression.

• Question– Were the confiscated materials protected by the First

Amendment? – May evidence obtained through a search in violation of the Fourth

Amendment be admitted in a state criminal proceeding?

• Conclusion– The Court brushed aside the First Amendment issue and declared

that "all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in any court under the Fourth Amendment." Mapp had been convicted on the basis of illegally obtained evidence. This decision explicitly incorporated the exclusion requirement.


US v. Leon, 1984• Facts of the Case

– Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that there was no probable cause for the search warrant and thus the evidence obtained under the warrant could not be introduced at Leon's trial.

• Question– Is there a "good faith" exception to the exclusionary rule?

• Conclusion– Yes, there is such an exception. The justices held that evidence seized

on the basis of a mistakes made in good faith by police officers could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct.

– In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.


Search and Seizure• Explicit Permission

• Search warrant– a properly obtained order from a judge authorizing the

search of a place based on probable cause and describing what is to be searched and seized

– “Bigger than a Breadbox” Rule

• Incident to a lawful arrest (warrant, probable cause, in the presence) – Search limited to:

• The individual being arrested

• Things in plain view

• Things or places under the immediate control of the individual


The Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”



• Fifth Amendment– Indictment by Grand Jury

• Has not been incorporated where there are ‘reasonable alternatives”

• Hurtado v. California, 1884

– Double Jeopardy• Benton v. Maryland (1969), 1937

– Self-incrimination• Malloy v. Hogan, 1963

– Taking of private property• Burlington Railway Co. v Chicago, 1897


The Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”



• Sixth Amendment– Speedy trial

• Klopfer v. North Carolina, 1967

– Public trial• In re Oliver, 1948

– Trial by impartial jury• Duncan v. Louisiana, 1968

– Unanimous jury verdict• Burch v. Louisiana, 441 U.S. 130 (1979): implicit guarantee of unanimous juries in criminal

cases

– Notice of accusation• Rabe v. Washington, 1972

– Confrontation of adverse witnesses• Pointer v. Texas, 1965

– Compulsory process to obtain witness testimony• Washington v. Texas, 1967

– Assistance of counsel • Gideon v. Wainwright, 1964

– Miranda warning• Miranda v. Arizona, 1966


Gideon v Wainwright, 1964• Facts of the Case

– Gideon was charged breaking and entering in Florida. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused. Gideon defended himself in the trial, was convicted by a jury, and the court sentenced him to five years in a state prison.

• Question– Did the state court's failure to appoint counsel for Gideon violate his right

to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments?

• Conclusion– In a unanimous opinion, the Court held that Gideon had a right to be

represented by a court-appointed attorney. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment.

– Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries."


• Facts of the Case– In 1963, Ernest Arthur Miranda was arrested for rape. He later

confessed to robbery and attempted rape under interrogation by police. At trial, prosecutors offered only his confession as evidence. Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years imprisonment on each charge, with sentences to run concurrently.

• Question– Does the police practice of interrogating individuals without

notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?

• Conclusion– The Court held that prosecutors could not use statements

stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." Confessions are presumed to be involuntary unless the suspect is fully informed of his or her rights. The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations.

Miranda v. Arizona, 1966

Smith v. Doe, 2003FACTS

• Under the Sex Offender Registration Act (Megan’s Law),

all convicted sex offenders must register with the State. The offender's name, photograph, and description is published on the Internet.

• John Doe was convicted of child sex offenses and released after completion of his sentence.

• He filed suit claiming violation of his substantive right of privacy and his procedural due process rights for having no opportunity to respond.

QUESTION

• Does Megan’s Law violate due process as required by the

US Constitution?

FINDING

• No.

• As a convicted felon, he had lost any implied

right to privacy.

• Megan’s law simply related factual information

without any implication of current danger.

• Although loss of the implied right to privacy is

serious, there was no risk of error here, and a

substantial cost involved in individual hearings

for every offender.

Smith v. Doe, 2003


• Seventh Amendment– Jury trial in civil cases

– Has not been incorporated where there are ‘reasonable’ alternatives

– Curtis v Loether, 1974


• Eighth Amendment– Excessive bail

• Robinson v. California,1962.

– Excessive fines• Cooper Industries v. Leatherman Tool Group,

Inc., 2001

– Cruel and unusual punishment• Roper v. Simmons, 2005

The death penalty was suspended from 1972 (Furman v. Georgia) until 1976 (Gregg v. Georgia)

Civil Liberties: Due Process And Procedural · PDF fileCivil Liberties: Due Process And Procedural Rights. ... • The individual being arrested ... privacy and his procedural due

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