freedom of speech, press, assembly, and petition. NOT PROTECTED: obscenity (left to communities), child pornography (involves minors), slander (oral false statements), libel (written false statements), perjury, false advertising, "clear and present danger", call for illegal acts (must be imminent), call for violent overthrow of government.
right to bear arms. KEY TERMS: "a well regulated militia" --> subject to much debate.
troops may not be quartered in homes during peacetime.
no unreasonable seaches and seizures. KEY TERMS: "search warrant" --> a written authorization granted police to conduct a search, "probable cause" --> the legal basis for a search or the issuance of a search warrant to a police officer.
grand jury indictment, no "double jeopardy", no forcing a person to testify against themselves, and no loss of life, liberty, or property without due process. KEY TERMS: "indictment" --> to formally accuse of a crime, "grand jury" --> pretrial jury that decides whether to indict the accused.
right to speedy, public, impartial trial, right to lawyer, and right to cross-examine witness.
jury trials in civil suits where value exceeds $20.
no excessive fines or bails and no cruel and unusual punishments. KEY TERMS: "bail" --> security, usually a sum of money, exchanged for the release of an arrested person as guarantee of his appearance for trial.
unlisted rights are not necessarily denied.
powers not delegated to the federal government or denied to the states are reserved to the states.
allowed royal agents to search anywhere at anytime.
writ of assistance
royal governors would issue search for unstamped goods.
"expectation of privacy"
persons, houses, and things are protected.
most private place.
in public/can be a safety issue. must have reasonable suspicion to search.
Katz vs US (1967)
overturned Olmstead (wire-tapping does not violate 4th if outside home) and protects people not places (phone booth declares privacy).
California vs Greenwood (1988)
police can search trash if close enough to get picked up.
Kyllo vs US
heat waves are not the same as trash bags (need a warrant to monitor).
facts or circumstances which would lead a reasonable person to suspect that a crime has been, is being, or will be committed. can perform a frisk, police must cite a reason for suspicion, refusing does not create suspicion, not aware of crime but have suspicion. needed to search a car.
facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will be committed and the person arrested is responsible. police can search and arrest, must know crime, and have evidence to support that belief.
"stop and frisk"
check for weapons (concealed), pat down.
Terry vs Ohio (1968)
police only need reasonable suspicion for pat down ("stop and frisk").
Minnesota vs Dickerson (1993)
can seize contraband (must be obvious to feel through clothing).
no need for probable cause (pat downs for everyone/can be selective).
cannot be selective/must be either random or all subjected.
probable cause is not needed if consent is given be subject (not allowed if permission is given by a minor or a landlord).
government can test employees for drug use.
Chandler vs Miller (1997)
court struck down GA law requiring people running for office to get tested for drug use.
NJ vs TLO (1985)
public school officials do not need probable cause to search a student or their locker but police do.
Board of Education vs Earls (2002)
upheld student drug testing for anyone involved in extracurriculars.
court order allowing search (must have probable cause and be passed by a judge).
warrant always needed to arrest someone in their home.
Wilson vs Layne (1999)
police cannot bring media along with them into a home.
when is a warrant not needed?
search incident to a lawful arrest (if arrested search is allowed), plain view (evidence is obvious --> transfers to probable cause), exigent circumstances (emergencies), hot pursuit (chase), and automobiles (reasonable suspicion is still needed).
illegally obtained evidence is not valid in court.
exceptions to exclusionary rule?
in good faith or inevitable discovery.
purpose of 4th amendment
protection from the government conducting unreasonable searches and seizures.
how does the 4th amendment and others constitute a "zone of privacy"?
1st: freedom of assembly/association = privacy of thoughts and beliefs, no prior restraint = goverment cannot act as a censor.
3rd: troops cannot be quartered in homes.
4th: no unreasonable search or seizure.
5th: cannot force to testify, due process is required.
9th: whatever is not stated is not necessarily denied.
other violations of privacy?
eavesdropping, assault, trespassing, commercial use of your image, publication of embarrassing facts (unless deemed "newsworthy").
attorney-client (right to silence, exception: in house attorney), spousal (cannot be forced to testify against spouse), doctor-patient (medical records are private), priest-penitent (confessions are protected), and therapist-client (confessions/discussions are protected). 1960s exception: shrink must tell client implies violence on themselves or others.
parents have right to send children to private school or to school at home
abortion (Roe vs Wade, 1973 --> upheld woman's right to abortion in first and second trimester, 3rd only allowed if woman or fetus's life is at stake), sodomy laws (most states have abolished but some (18) states have laws banning homosexual sexual intercourse), gay marriage (evaluating under equal protection, illegal in most states but some states will recognize), right to die (not protected, only in Oregon --> doctors can issue prescription but cannot actually carry out death).
sensible reason for test needed, must be reasonably related, public schools can mandate for all students involved in extracurriculars.
police can test blood, urine, and breath, if test is refused --> license is revoked immediately.
lie detector tests
can be used but not admissible as evidence in court.
differences between criminal law and civil law cases
civil law: dispute between two plaintiffs, money or compensation is involved, accused is liable, preponderance of evidence (51% < liable), jury=simple majority, and not all of the 5th holds. criminal law: offense or action that is a harm to society, possible loss of life or liberty, accused is guilty (90% <liability), jury=unanimous, all of the 5th amendment holds.
OJ Simpson example
never spoke during entire criminal trial --> proven innocent and can never be tried again, got sued in civil court and lost
provisions in the 5th
limit power of government
first provision of the 5th
"grand jury" - inditement required to prosecute an individual, jury of 23 people must declare case valid (simple majority). "petit jury" - regular criminal trial (6-12 people), determines guilt, must be unanimous. "indictment" - to formally accuse. "presentment" - grand jury may add additional charge(s). "information" sworn statement stating that enough information stands for trial.
second provision of the 5th
"double jeopardy" clause - cannot be tried for the same offense twice, EXCEPTIONS: hung jury (no unanimous decision), appeals (requests for another trial).
third provision of the 5th
self incrimination - take the 5th (not speak/cannot be forced to testify against oneself), confessions or evidence - inquisition (origins --> questioned under oath), accusation (means nothing until verdict is reached).
Miranda vs Arizona (1966)
"Miranda rights" - accused must be informed of all rights before any testimonies or evidence can be valid
New York vs Quarles (1984)
police can take weapon, then arrest, then implement Miranda rights.
Illinois vs Perkins (1990)
if police posing as an inmate gets the accused to divulge information, the evidence holds in court regardless of Miranda rights.
witness protection program --> can be forced to testify
physical evidence must be submitted regardless of situation or rights.
fourth provision of the 5th
"due process of law" - government cannot be arbitrary, must act fairly and according to established rules, two types of due process - "substantive" (things that you should have that are not stated in the constitution and "procedural" government must obey procedures throughout all trials.
fifth provision of the 5th
"eminent domain" - private property cannot be taken away without compensation
"all criminal prosecutions"
minor offenses do not get all protections
right to speedy trial
"justice delayed is justice denied", innocent until proven guilty but evidence complications and inability to pay bail can lead to longer time in jail
100 days or drop case
right to public trial
limits are placed, "Sheppard vs Maxwell" (1996) - venue (place where trail takes place, sequestering (isolating jury from press during trial), "Richmond Newspapers vs VA" (1980) - gives public right to visit trials unless judge declares otherwise.
right to an impartial trial
plea bargain - plea guilty for a lesser punishment, state vs national standards - national (12 person jury/must be unanimous), state (less than twelve okay/non-unanimous allowed), voir dire - questioning for possible jury member to determine any predispositions, preemptory challenge - attorney's may exclude certain people from the jury for certain reasons (not allowed for gender or racial reasons), local jury - defendant can move jury if proof that locals are biased.
right to be informed of the nature and cause of the accusation
for indictment, private, charges are finalized.
court hearing where defendant gets at least an informal charge --> must release 48 hours after if no charge.
serious crime (can involve 1+ years in prison).
minor crime (1- year in prison).
right to be confronted by the witness against him/her
cross-examine - asking questions to dispute witness, hearsay - testifying with 3rd party testimony, privilege - must speak otherwise.
not required to stand trial face to face.
court order that forces a witness to speak or bring forth evidence.
right to have the assistance of counsel
capital cases require an attorney.
Gideon vs Wainwright (1963)
felony charges require courts to provide lawyers.
jury (facts) vs judge (law)
jury decides facts; judge applies law to facts given by jury.
if it seems that you are very dangerous or might run away then bail is not allowed.
no cruel or unusual punishment
"evolving standards of decency" apply.
Gregg vs GA (1976)
upheld death penalty/declared it constitutional.
increases severity of crime.
decreases severity of crime.
when manslaughter is committed in the course of felony --> charge is escalated to murder and accomplices are also guilty.
nature of defendant
death penalty for mentally retarded people is unusual therefore unconstitutional.
if conditions are crowded or bad in prison --> can argue cruel and unusual punishment. prisons are also required to provide healthcare (Estelle vs Gamble).
public school rules
schools are permitted to deal out corporeal punishment (Ingraham vs Wright, 1977).
legitimate rights even if not in the constitution (Griswold vs Connecticut (1965), Roe vs Wade (1976), Lawrence vs Texas (2003)).
14th amendment (due process clause)
no court shall deprive anyone of life, liberty, and pursuit of happiness without due process of law.