Procedural Due Process

- Fourth, Fifth, Sixth, and Eighth Amendments

- Due Process
o Protection against the arbitrary deprivation of life, liberty, or property as guaranteed in the 5 th
and 14th Amendments
o Concept included in Magna Carta issued by King John in 1215
o Term not used in Declaration of Independence or Constitution
- Substantial Due Process
o Context of laws must be fair and reasonable
o Government cannot make laws that apply to situations in which the government has no right to
interfere
o Privacy, choice of work, friends
- The Constitution prohibits:
o Ex post facto laws—a law that declares an act a crime, even though it was not a crime when
committed
o Bill of attainder—an act that inflicts punishment upon an individual or group without a trial
o Suspension of the writ of habeas corpus—“have body”—an order commanding that a prisoner
be brought to court to be told why he is being detained
- Procedural Due Process
o Protects individuals from unreasonable and unfair governmental practices
o Procedures used by the government in making, applying, interpreting, and enforcing the law
must be fair and reasonable
o Right to counsel, searches that are “reasonable”, self-incrimination, etc.
- Adversarial v. inquisitorial
o Adversarial: prosecutor and defense attorney present arguments, evidence, etc to an impartial
body (judge, jury) who renders the decision
o Inquisitorial: the judge of responsible for gathering the information needed to render a decision
- Fourth Amendment: “Search and Seizure”
o “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, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized” –December 1791
o Key terms
 Probable cause—a good reason for suspecting a person of breaking the law
 Warrant—a written document giving permission or the search or seizure (describing the
place to be searched and the person or things to be seized)
 Historically, general warrants were issued; British had used writs of assistance
 Exclusionary rule
 Today excludes evidence obtained by law enforcement officers while violating rights
protected by the Constitution
 English Common Law had said that confessions obtained by force or torture could not
be used
 Good faith exception
 Admission during a trial of evidence that is gathered in violation of the Constitution if
the violation results from a technical or minor error (i.e., wrong date)
(c) Amy Ho 2010
  The officers believe that the warrant was legal at the time they gathered the evidence
 Reasonable expectation of privacy (right to privacy from invasion by government officials)
 Includes your body, your home
 Right to privacy is not included in the Bill of Rights but has been derived from the Fourth
Amendment
o Reasonable search
 When the police have a search warrant—an order from a judge authorizing the search of a
place
 Specifies what is to be searched
 Based upon probable cause—good reason to believe that a crime has been committed and
that evidence will be found at that location
 Generally, can search you, things in plain view, things or places under your control if:
 You are being lawfully arrested (the judge has issued a warrant for your arrest)
 You commit a crime in the presence of a police officer
 The officer has probably cause to believe that you have committed a serious crime
o Case law:
 Weeks v. United States (1914)
 Police searched his home without a warrant because he was suspected of gambling
 Result: warrantless search was a violation of his rights
 Beginning of the exclusionary rule (established as check on police powers)
 Set the stage for Prohibition Era
 9:0 vote
 Olmstead v. United States (1928)
 He was wiretapped because he was gambling
 Result: no violation of rights had occurred; conversations are not protected by the
Fourth Amendment; there had been no invasion of the defendant’s house (opinion is
now different today)
 5:4 vote
 Mapp v. Ohio (1961)
 Police took evidence from car trunk without warrant
 Result: this was an unreasonable search; required state officers to comply with Fourth
Amendment standards
 Exclusionary rule was extended to states—Fourth Amendment was incorporated
 5:3:1 vote (abstention due to possible partiality)
 Katz v. United States (1967)
 Wiretap placed on public phone booth
 Result: reversed lower court’s decision—search warrant was needed
 “Reasonable expectation of privacy”—Superman goes into a phone booth to change for
the privacy!
 7:1 vote
 Bellnier v. Lund (1977)—U.S. District Court
 Ruling: strip search of all students was a violation f the Fourth Amendment
(unreasonable search)
 Suspicion was not particularized
 New Jersey v. TLO (1985)
(c) Amy Ho 2010
  Student was suspected of smoking; bag was searched, discovered that she was a dealer
 Result: student lockers may be searched; must have reasonable suspicion (not probable
cause)
 In loco parentis—school is acting as a parent
 Lockers are school property; used by students as a privilege
 6:3 vote
 Odenheim v. Caristadt (1985)—N.J. Superior Court
 Background: East Rutherford
 Result: search of all students violated condition of reasonable suspicion; search must be
particularized and individualized
 Skinner v. Railway Labor Executives Association (1989)
 Suspicionless drug testing for railway employees is allowed
 Issue of public safety
 Vernonia v. Acton (1995)
 Football students suspected of using drugs; drug problem present in community
 Results: testing for drug use among athletes was reasonable due to competitive
situations
 6:3 vote
 Tecumseh v. Earls (2002)
 Competitive choir, school required drug testing
 Results: expanded drug testing for students in competitive activities
 Custodial responsibilities of public schools
 Schools must keep a drug free environment
 No identified drug problem, just precautionary (thus different from Vernonia)
- 5th Amendment
o “No person shall be held to answer for a capital, or other infamous crime, unless on a
presentment, or indictment of a grant jury, except in cases arising in the naval forces, or in the
militia, when in actual service in a time of war or public danger”
o “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or
limb” (double jeopardy)
o “Nor shall be compelled in any criminal case to be a witness against himself” (taking the Fifth—
anything you say can and will be used against you in a court of law; self-incrimination)
o “Nor be deprived of life, liberty, or property, without due process of law”
o “Nor shall private property be taken for public use without just compensation” (eminent
domain)
o Petit jury decides the evidence and rules on guilt or innocence—6-12 member jury with one or
two alternates
o Grand jury looks at evidence to see whether or not the person should be formally charged with
a crime (indicted), but does not actually rule on guilt or innocence
o Double jeopardy does not apply if the retrial is based on an appeal brought by the defendant
o Case law:
 Commonwealth v. Dillon (1791)
 12-year-old confessed to arson after being held in dungeon for 48 hours in Philadelphia
 Court ruled that the confession was coerced; the confession was the only evidence
 Not guilty
(c) Amy Ho 2010
  Palko v. Connecticut (1937)
 Double jeopardy did not apply to states
 Double jeopardy was not incorporated until 1969
 Court ruled Palko guilty lesser charge, so Connecticut demanded retrial where Palko was
found guilty of heaviest charge
 Decision: 8:1 vote
 Adamson v. California (1947)
 Denied right to remain silent: prosecutor’s comments pointing out to the jury that
Adamson had not testified
 Telling jury this did not result in an unfair trial
 Decision: 5:4 vote
 Escobedo v. Illinois (1964)
 Exclusionary rule includes illegally gained confessions
 Escobedo had not been allowed to see his lawyer even though the attorney was in the
building
 Decision: 5:4 vote
 Miranda v. Arizona (1966)
 Accused must be informed of his rights
 Decision: 5:4 vote
 Fulminante v. Arizona (1991)
 Confessed to a “protective” FBI informant; later recanted statement
 Court invalidated coerced confession
 Remanded for a new trial (without confession as evidence)
 5:4 vote
 Dickerson v. United States (2000)
 Congress had passed law extending Miranda rights
 Court ruled that it was not ready to overturn Miranda
 Only the Supreme Court decides the constitutionality of the issue
 Power play between Court and Congress
 Ruled Congress’s bill unconstitutional because infringed on Supreme Court’s jurisdiction
 7:2 vote
th
- 6 Amendment
o “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”
o “To be informed of the nature and the cause of the accusation, to be confronted by the
witnesses against him, to have compulsory process (subpoena) for obtaining witnesses in his
favor and to have the assistance of counsel for his defense”
o Case law:
 Powell v. Alabama (1932)
 Scottsboro boys (9) raped/killed two white women
 Two attorneys for all 9 boys, only consulted for 30 minutes
 Right to counsel is guaranteed in capital cases
 Decision—7:2 vote
 Betts v. Brady (1942)
(c) Amy Ho 2010
  Betts—robbery, no murder, so right to attorney?
 Right to counsel will be decided on a case-by-case basis (mental competency)
 Applied to federal action only (not yet incorporated)
 Decision—6:3 vote
 Gideon v. Wainwright (1963)
 Right to counsel (attorney) is guaranteed; right to counsel is a fundamental right
 If the defendant cannot afford one, one will be appointed for him/her
 Warren Court (also ruled on Brown v. Board of Ed.)
 Decision—9:0 vote—UNANIMOUS!

(c) Amy Ho 2010

 Video—Search and Seizure

1. Writ of assistance: a general warrant that authorizes a customs officer to demand the assistance of
anyone to help him search; it lasted for the life of a king
Colonists hated because: customs officers could inspect anything at any time
2. Writs were issued to deal with: the smuggling of English goods
3. James Otis, Jr. argued against writs, invoking: Magna Carta, British Constitution, common law
4. The Fourth Amendment is a protection against oppressive and arbitrary government actions
5. Exceptions for the need for a warrant: emergencies, when evidence might disappear, or when
weapons are in play
6. 2-step process regarding search and seizure cases: A) the justices must decide if the behavior is a
search or a seizure; B) if so, is it unconstitutional?
7. Exclusionary rule: says that any evidence obtained when the Fourth Amendment was violated
would not be used in court (must be excluded); established by Weeks v. U.S.
Added because: if it wasn’t, then the Fourth Amendment might as well not exist
Limitation: only applied to federal officers and not to state and local police, so the Fourth
Amendment was easily ignored still
8. Warren Court changed things: expanded and focused on Fourth Amendment rights
9. 1940s-50s, exclusionary rule did not apply to: state and local police officers
10. Mapp v. Ohio (1961) changed: the decision fully extended the exclusionary rule to states, which
made the rule fully inclusive
11. Reaction of law-enforcement personnel to the exclusionary rule decision: it seemed to place new
limits on police action, which angered them at first; later, it was accepted because it added
professionalism to law enforcement
Justice Cardozo asked: must the criminal go free because the constable blundered?
12. Warren court gave added protection under Fourth Amendment: it ruled that a citizen has a
reasonable expectation of privacy in a public place; law enforcement could not search a home
simply because a person was lawfully arrested there; the regulations for probable cause were also
tightened
13. Nixon’s pledge: he pledged to end the “wave of crime” by redefining the Court’s view of the Fourth
Amendment
14. Burger court expanded police authority: the Court expanded the circumstances in which police
could conduct a search without a warrant; the requirements for probable cause became less
stringent
15. Good faith exception: the officers can use evidence obtained through a warrant that should not
have been issued because the officers had acted in “good faith”, and it was the magistrate’s fault
16. Rehnquist court (1986) “adjusted” the exclusionary rule: it added more exceptions and allowed
more evidence
17. Issue of mandatory testing of immigration officials
Court said: within certain forms of public employment, there would be an expected lessened
Fourth Amendment right
Scalia dissented: there was never, and had never been, any evidence of a customs official being
subverted; trust in integrity
18. Rationale of the court for limiting your protection from search: “reasonable”?

(c) Amy Ho 2010