CIVIL LIBERTIES QUESTIONNAIRE

           Democrat  _______  b.  Republican  _______ c.  Independent _______   

 

2.      What do you consider yourself ideologically?

           Conservative ______      b.      Liberal ______      c.      Moderate _______

 

3.      A man is convicted of murder.  Evidence used to convict him was seized illegally, without a valid search warrant.  He charges his 4^th amendment rights - freedom from unreasonable search and seizure - have been violated.  Should the evidence convicting him be thrown out because of this?     Yes _____  No _____

4.      A man is convicted of rape.  A confession was obtained from him after 22 hours of questioning and denying him access to his attorney.  He charges his 5^th amendment rights were violated - freedom from self-incrimination (compulsory) - and his 6^th amendment rights - right to council.  Should his conviction be thrown out on those grounds?                          Yes _____   No _____

5.      A  theater owner is convicted for showing allegedly obscene films depicting explicit sexual acts.  He claims that he is protected by the first amendment - freedom of speech and press.  Do you agree?              Yes _____  No _____

6.       The American Nazi Party is repeatedly denied a permit to march through your neighborhood because they are considered a threat to law and order.  They charge that their first amendment rights are being violated -freedom of speech and assembly.  Do you agree?  Yes _____  No               Should they be allowed to march peacefully?      Yes              No           

7.      A man is convicted of six charges of rape and first degree murder and is given the death penalty.  He charges this is a violation of the eighth amendment - freedom from cruel and unusual punishment.  Do you agree?  Yes _____   No _____

8.      The federal government requests an injunction against a newspaper to stop their printing of allegedly secret government documents which would destroy national security secrets.  Should the government be allowed to stop the newspaper from printing the material?        Yes               No_____

9.      A fair housing and anti-job discrimination ordinance guaranteeing nondiscrimination on the basis of sex, religion, race, color, or sexual orientation is repealed.  A group of gays and blacks challenge this as a denial of the 14^th amendment rights - equal protection of the laws.  Do the blacks have a valid case?   Yes                No               Do the gays?   Yes              No            

10.  A researcher whose thesis attempts to prove blacks are genetically inferior is denied permission to speak at a university due to the "racist" nature of his material.  Is this a violation of his freedom of speech rights?    Yes              No            

11. A gay couple prosecuted for violating sodomy laws (while in the privacy of their home) charge their rights to privacy are being violated.   Yes               No            

     Bill of Rights—the first 10 amendments to the US constitution, added to fulfill a promise made by the supporters to gain ratification of the US constitution in 1787-89.  They contain the vast majority of our civil liberties (although they are NOT a complete list.)

   Free exercise clause—found in the first amendment—designed to protect the freedom to believe and the freedom to worship.

    Clear & present danger rule- can punish or outlaw speech only if it causes substantive evils (rioting, destruction of property, lawlessness.) So imminent and immediate that no opportunity exists for discussion.  Government must prove speech presents immediate danger.

Libel/slander –to falsely and maliciously destroy someone’s reputation.  Slander  is the spoken word and libel is the written word.

      No prior restraint rule –the guideline established by the US Supreme Court when ruling on freedom of speech cases.  There is no advance censorship of the press by government.

 Fairness Doctrine –the FCC created the fairness doctrine.  It required the media—TV and radio must allow equal time to both sides of an argument. Discontinued in 1986 because of cable television and a diversity of viewpoints now available. 

Pentagon Papers case—US Supreme Court ruled that the Nixon administration could not stop the NY Times and other media from printing excerpts from the stolen copies of the top secret “Pentagon Papers”  (a top secret government study of the US involvement in the Vietnam War) because the government had not proved irreparable harm to national security.

Gag order –issued by a trial judge as a last resort to protect a defendant’s right to a fair trial (guaranteed by the 6^th Amendment) from prejudicial media coverage.

Shield law –laws that give a reporter the legal right to refuse to divulge the identity of a confidential source (to the police, a grand jury, or in the courtroom)

Obscenity & Miller test—test developed by the Burger Court in 1973 defining obscenity—it is the current test still used to determine if material is obscene (or pornographic) and thus, not protected by the constitution.  Three key questions are asked to make this determination.

Fighting words –words that either incite a breach of peace or are designed to inflict emotional injury or harm (ex: racial slurs).  These are NOT protected by the 1^st Amendment because they have no value.

Sodomy laws –laws that make deviant sexual behavior illegal.

Captive Audience rule- if the advertising is aimed at people who cannot get up and leave then it can be restricted and regulated.

 

First Amendment Rights 

 

Amendment I   “CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.”

 

·        First Amendment freedoms can be described as protecting our FREEDOM OF EXPRESSION—all types—oral, written, behavioral, organizational, thought, etc.

 

·        The US Supreme Court has ruled that these are fundamental rights to democracy and will be given preference or added protection.  They assume that all government restrictions on a 1^st Amendment right are unconstitutional and the government must make a strong case why the restrictions should be upheld. 

 

·        In addition to the six specifically mentioned 1^st Amendment rights…

1.     free exercise of religion

2.     establishment clause

3.     speech

4.     press

5.     assembly

6.     petition,

 

·        the US Supreme Court has ruled that there are two implied rights:

1.      the right to association

2.      the right to demonstrate.

 

 

I.    The establishment of religion clause

“Congress shall make no law respecting the establishment of religion”

 

a.   Government cannot establish a national religion.

b.   No official church

c.   No government financial support of any religion or church.

 

·        The US Supreme Court interpreted this clause as requiring the “Separation of church and state”—government should not meddle in religious and church affairs and church should not meddle in governmental affairs. (These words came from a letter Jefferson wrote to a group of Connecticut Baptists in the first decade of the 1800s.)

 

·        The US Supreme Court also said the establishment clause requires government neutrality or no government favoritism.

 

·        Supreme Court established the Lemon Test to decide establishment clause cases.

The Lemon Test

Courts must ask three questions:

1.     Does that law reflect a secular legislative purpose?

2.     Does that law/government program or policy neither advance or inhibit religion?

3.      Does it avoid excessive entanglement with religion including sponsorship, financial support, and active involvement in religion activities?

 

ESTABLISHMENT CLAUSE CASES USING LEMON TEST

ALLOWED - Tax dollars for nativity scene ok because it is a historical event not just religious—however—can’t just be a nativity scene by itself—it is religious in nature—must have secular Christmas decorations included, also…perhaps a Jewish menorah to celebrate Hanukah and signs “Liberty” “Equality”, etc.—this shows a diversity of messages and not a endorsement of Christianity. -Voluntary (or silent) prayers by individual students (before lunch or an exam!) - Prayers ok in Congress, State, Legislature, Government meetings—because they are adults and have already formed their religious views & not easily intimidated, and graduation ceremonies, if supported by the majority and a student says prayer. - Busing, text books, testing  services - -Tax exemptions for churches—must apply to ALL churches & faiths and even the American Atheist Society -Sunday closing laws

NOT ALLOWED - No organized prayers in public schools - No organized Bible reading - No required posting of Ten commandments in public classrooms - No banning of evolution - No regulated teaching of creationism because it is a religious theory - No “equal time laws”—creationism is a religious theory and evolution is a scientific theory—one belongs in a science class and the other doesn’t - No moment of silence law - for schools because the state law mentioned  “prayer”  --(lower courts seem to be upholding these laws now)

 

II. Free Exercise Clause

“Congress shall make no law abridging the freedom” of religion

 

This was intended to do two things:

1.      Protect the freedom to believe according to our conscience ( this is absolute; there can be no restrictions on what you believe, no matter how “weird”)

2.      Protect the freedom to worship (this is NOT absolute because behavior can pose a danger to the community or other individuals)

 

 

Protected or not by the free exercise clause.
AREAS PROTECTED	AREAS NOT PROTECTED
- Jehovah Witnesses believe in no blood transfusions. (If they are adults, allowed to die based on religious beliefs) - Amish believes children should not go to school  after eighth grade.  (Necessary --skills to Amish way of life must be learned) - Quakers who don’t believe in killing even in war. Want to be exempt from a military draft. (Conscientious objector) - Santeria- Sacrifice animals primarily chickens. (Did not endanger anyone and was more religion) - Navajo used peyote-an hallucinogenic drug-- (legal--only during ceremonies) - Rastafarians-- use marijuana during ceremonies - Saluting the flag-Jehovah Witnesses don’t believe in idolatry or saluting the flag. (Not a danger to anyone & not a measure of one’s patriotism)	- Christian Scientists- wants to be exempt from mandatory vaccinations. (Too risky for rest of community) - Snake Handling (Danger to congregation)—can be banned - Child patients have no right to refuse medical treatment for religious reasons.  Because not mature enough to make this decision. - Mormons & polygamy- Wanted more than one wife at the same time. (Too far outside the normal moral mainstream)

 III. Freedom of Speech

·        How the courts deal with speech depends on which of the 4 types you are engaging in.

 

Types of speech

1.   Political Speech-Most protected because it has to do with government policy, elections, campaigns, and debating political ideas.

·        the Clear and Present Danger Rule applies here.  Can punish or outlaw speech only if it causes substantive evils (rioting, destruction of property, lawlessness) that are so imminent and immediate that no opportunity exists for discussion.  Government must prove speech presents an immediate danger.

·        Judge considers:

What was said?  (the actual words)

How it was said? (the tone used)

Intent of the speaker? (the words, tone, the speaker’s prior speeches, statements, etc.)

Where was it said? (was a deliberately confrontational location chosen to perhaps incite trouble?)

·        Circumstances:

How is government attempting to regulate speech?

Why is government attempting to regulate speech?

2.   Pure- Speech between family friends and neighbors. Doesn’t deal with public policy & because it’s personal, private, and intimate, government has no business regulating it. 

3.   Commercial - advertising of any kind.  It must be truthful --can’t be deliberately deceptive or it’s not protected. Also, the courts allow it to be regulated by the captive audience rule- if the advertising is aimed at people who cannot get up and leave then it can be restricted and regulated. 

4.   Symbolic- Actions that express an idea.  Examples include: draft card burning, wearing armband, or peace symbol, burning the American flag, wearing a t-shirt or clothing with a political slogan or symbol. 

·        The courts have established 2 rules:

1.      Did it interfere with a government program? Yes? Then not protected.

2.      Does the speech interfere with the operation where it takes place? If yes, then not protected.

IV.  Freedom of Press

This includes newspapers, magazines, periodicals, journals, pamphlets, brochures, and the electronic media: television, radio, movies, videos, and music, the Internet. 

The courts established the No Prior Restraint Rule- Government cannot stop the presses; no advance censoring of the news. 

 

Three minor exceptions to the “no prior restraint” rule:

      1.    National Security- must cause “irreparable harm (Pentagon Papers case).

o       (Critical report of several leaders, about the Vietnam War.) NY Times won because Nixon administration did NOT prove irreparable harm.

o       (Student for his doctorate wrote how to build an atomic bomb. Was going to sell it to a magazine.  Magazine won because material was already available in an uncondensed form on library shelves.

        3.   Vital national interests are harmed.  This could be copyright information, or economic or national trade secrets.

 

Not protected by freedom of Press:

1.     Reporters confidential sources. Unless you live in a state with a shield law. Allows reporter to keep the source secret.

2.     Libel/Slander-falsely and maliciously destroying their reputation. Has to be false and be malicious.

3.     Pornography- Obscenity. Is not protected by the freedom of press.  Not all nudity is obscene.  Can’t be defined.  Courts use the Miller test since 1973.

A.         1957--Roth case: Dominant theme appeals to “prurient interest” and is utterly without redeeming social importance” (trying to excite you sexually)

B.         1966--Fanny Hill case: Dominant theme had to appeal to  “prurient interest” and was utterly without “redeeming social value.”

C.         Miller Test-Miller v. California 1973

 

Miller Test-Miller v. California (1973) o                                                         Courts must now ask three questions 1.    Does the average person applying contemporary community standers find that        the work taken as a whole appeals to prurient interest? 2.    Does the work depict in a patently offensive way sexual conduct defined and prohibited by state law? 3.    Whether the work as a whole lacks serious literary artistic political or scientific        value.

 

4.    Fighting words- well-defined and narrowly limited classes of speech, which by their very nature inflict injury or tend to incite an immediate breach of peace. Racial slur.

5.    Sedition & Subversion. Speech and press encouraging the use of force in violation of the laws producing imminent lawless action

 

Electronic Media can be banned for obscenity reasons. (TV, radio, and films music, Internet.)

But the business raided must provide a quick judicial hearing.

Movies are rated (R, PG-13, PG, G)

Television shows are now rated

Music products are not consistently rated.  Some record companies voluntarily put warning stickers on some products that have explicit lyrics. 

The Internet: Congress has had a difficult time trying to protect children from Internet pornography.  Two laws have been ruled unconstitutional by the U.S. Supreme Court.  They violated the 1^st Amendment because, according to the Court, they were vague and overbroad, thus limiting legitimate non-pornographic material to adults. 

 

V.  Freedom to Assemble

o       Must be peaceful to be protected

o       No right to assemble on private property without the consent of the property owner.

 

o    Three restrictions on right to assemble:

1.   Time restrictions- used to prevent disturbing other people, and teen curfew backed up by statistic evidence showing crimes done by teens

2.      Place restrictions- not where quiet is necessary to operate.

3.      Management Restrictions- Willie Nelson concert near 4th of July in Austin.  To gain the concert permit, he had to show he could provide restrooms, parking, and medical personnel for usual drug overdoses.

 

 

VI.  Right to Petition government for redress of grievances.

You have the right to gripe and complain to government. This protects lobbyists, interest groups, and citizens.

 

Implied Rights:

1.    Right of Association-- constitutional right to belong to organize a club of your choice -- no matter how radical or unpopular (KKK, Nazis, Communists, Gay Liberation)

2.    Right to Demonstrate     --constitutional right to march, demonstrate, picket, have a sit-in.

This follows the same rules and regulations as freedom of assembly.                Also allows for time, place, and management restrictions.

 

 

Right to Privacy

o       This is not specifically mentioned in the US Constitution.  It is based primarily on amendment IX.

 

 

Amendment 9   “The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

 

 

This has been interpreted by the US Supreme Court to mean that the listing in the Bill of Rights should not be interpreted to mean that we don’t have other rights not listed.

Bill of Rights should not be construed (interpreted) to be a complete list of our rights.

    

 

Right to Die

This was established in the Cruzan case (1990) 

The U.S. Supreme Court ruled in its first right to die case that a competent adult had the constitutional right to die based on the 14^th Amendment’s “liberty” in the due process clause.  However, states may regulate this process and establish guidelines. 

 

14th Amendment due process clause   “…nor shall any State deprive any person of life, liberty, or property, without  due process of law;”

The Nancy Cruzan Story

Nancy Cruzan was a young woman in her 20s who was in a horrible car accident.  Although she survived, her brain was deprived of oxygen long enough before medics arrived at the scene that she suffered irreversible brain damage.  She ended up in a persistent vegetative state on life support.  Her parents and family, after consulting with doctors and being told their was no hope of any improvement, asked that life support be disconnected because she would not want to be kept alive this way.  The hospital refused and the family went to court.   It went all the way to the Missouri Supreme Court, which ruled that since Nancy Cruzan had no living will or written documentation indicating her wishes, the state of Missouri, which required written documentation, could not honor the parents’ request.  The family appealed to the U.S. Supreme Court.  This was the U.S. Supreme Court’s first right to die case, thus creating a legal precedent when the ruling was handed down.  Although the Supreme Court rule (and established) that a competent adult had a constitutional right to die, they also ruled that states may regulate this practice and since Missouri required written documentation and Nancy Cruzan had none (what 20+ year old does??), the state could legally deny the parents’ request.  A few months later several of Nancy’s coworkers came forward and said she had also expressed similar wishes to them—which she did not want to be kept alive as a vegetable.  As a result, the state of Missouri finally decided that was sufficient “proof” of Nancy Cruzan’s wishes and life support was disconnected and she died shortly thereafter.  Moral of this story: have a living will no matter what your age!

Criminal Justice Rights

Most of these rights and protections are found in the Bill of Rights in Amendments 4-8.

 Issue: Are criminals overprotected?

 

AMENDMENT IV (Search and Seizure)   “THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,  HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE  SEARCHES AND SEIZURES, SHALL NOT BE ISOLATED, 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.”

 

4^th Amendment Protections

The US Supreme Court has interpreted the 4^th Amendment’s “no unreasonable search and seizure” to require one of the following to be present for a search to be legal:

1.   A valid search warrant listing the address to be searched and the items to be seized.

2.   Probable cause—something about the suspect’s behavior or appearance that indicates a crime is about to be committed, is being committed, or will be committed.

3.   A limited search of the suspect’s clothing, body, and immediate surroundings can be conducted in conjunction with an arrest to insure that:

o       Evidence will not be destroyed

o       A weapon will not be used against the law enforcement officer.

The US Supreme Court established the exclusionary rule in 1914 for federal courts and applied it to the state courts in 1961.  The exclusionary rule stipulates that illegally seized evidence cannot be used in court.  It must be thrown out.  This is to deter illegal searches and seizures and gives teeth to the 4^th Amendment. 

 

o       Supporters argue it deters illegal searches and seizures and is an incentive for over zealous cops to act legally and professionally.  They also argue that it protects all of us from “police state tactics.”

o       Critics argue that evidence that can lead to an indictment or a conviction is thrown out, and a guilty suspect is either not indicted or not convicted.  The end result: that suspect is out on the streets committing more crimes and endangering society.   They also argue that this loophole encourages more crime.  Police may have made an honest mistake in conducting the search—why should society suffer by having that suspect released?

 

AMENDMENT V (due process & others) “NO PERSONS 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 ORDER OR IN THE MILITIA WHEN IN ACTUAL SERVICE  IN TIME OF WAR OR PUBLIC DANGER NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE 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.”

 

 

5^th Amendment Protections/Rights:

1.      grand jury indictment-at the federal level and in most states, a grand jury must indict (charge) a suspect with a felony crime for them to be taken to trial.  This protects suspects from trumped up, politically motivated charges being brought by the district attorney (who is elected and may be under tremendous pressure to bring a suspect—any suspect—to trial) or the police.  It takes 9 of 12 grand jurors voting that there is sufficient evidence to hand down an indictment (a formal charge.)  Any vote less than that leads to a “no bill”—no charges filed. 

2.      no double jeopardy—a person cannot be tried for the same crime twice (unless they commit it a second time) even if, after an acquittal, evidence is uncovered indicating their guilt.  This prevents the government from bringing a suspect to trial again and again until they finally gain a conviction.

3.      right to remain silent (pleading the 5^th)—a suspect or defendant has the right to remain silent and not answer questions, and has the right not to take the stand in their trial.  This is done on the grounds that you might incriminate yourself.  The purpose was to prevent coerced confessions and the use of the “third degree”—physical or psychological torture/pressure/coercion.

4.      due process—a person cannot be executed, be jailed or imprisoned, or have property confiscated without due process—fair procedures followed.  The courts have interpreted due process to require:

a.              one phone call when taken into custody

b.              the reading to a suspect of his or her Miranda rights (described below).

 

Miranda rights When a suspect is taken into custody and questioned, based on Amendments 5 & 6, police must read the suspect their rights (to protect the less educated who may not know what their rights are).: These rights include: ·              Your right to remain silent o             Anything you say can be used against you o             Your right to a lawyer o             If you are too poor to hire a lawyer, the court will provide you with one You can stop questioning at any time and request to see a lawyer

 

 

 

AMENDMENT VI (Due Process)    “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 THE 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 THE COUNSEL FOR HIS DEFENSE.”

 

 

 

 

 

 

 

 

6^th Amendment Rights

 

•  speedy trial

This has been defined by the courts as a trial being held “without unreasonable delay.”  The courts have never defined it in terms of a specific number of days or months.  Many states (including Texas) have speedy trial laws requiring criminal trials begin within a certain time period after charges have been filed.  In Texas it is 180 days—6 months. 

·        A public trial

The trial must be open to the public and press to guarantee its fairness.  Public and media scrutiny make it less likely that the government or prosecution could railroad someone and obtain a guilty verdict.

·        An impartial jury

This has been defined as a jury with “randomly selected” jurors (no one group deliberately excluded) and composed of jurors who can be objective and have not yet formed a prejudicial opinion about the case.  This is becoming increasingly difficult in cases extensively covered by the media (ex.: the OJ Simpson trial, the Scott Peterson case, the Kobe Bryant case)

·        Trial in state and district where crime committed

An exception to this is if the trial judge orders a change of venue (moving the location of the trial to another jurisdiction where there has been less media coverage or where it might be easier to select an impartial jury.  This was done in the Timothy McVeigh/Okahoma City bombing trial—it was moved from Oklahoma City to Denver.

·        Be informed of charges against you

A defendant must be told of the charges against him/her so that an adequate defense can be prepared.

·        Confront witnesses against you

The defendant and defense attorney must know how the prosecution’s witnesses are so that an adequate defense can be prepared.  The defense must have the opportunity to cross-examine all witnesses.  This is even true in child molestation cases although precautions are taken to minimize the trauma to young child victims.  Often the child victim is placed behind a screen or one-way mirror. 

·        Compulsory process for obtaining witnesses on defendant’s behalf

The defense must have the same right as the prosecution to subpoena reluctant witnesses. 

·        Assistance of counsel (right to an attorney)

The courts have ruled that an indigent (poor) defendant must be provided with a court-appointed attorney, at the taxpayers’ expense. 

 

 

AMENDMENT VII   “IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY  SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY,  SHALL BE OTHER WISE RE-EXAMINED IN ANY COURT OF THE  UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW.”

 

 

7^th Amendment Rights

In a civil trial, if the amount of the dispute exceeds $20, either party can ask for a jury trial.

 

AMENDMENT VIII “EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES NEITHER IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS  INFLICTED.”

 

 

 

 

 

8^th Amendment Protections/Rights

1.      No excessive bail

Bail is money put up by the defendant so that if they are released, they will appear at the trial.  Failure to appear results in forfeiture of the money.  The bail must be proportionate to the crime—the more serious the crime, the higher the bail.  Judges can deny bail if the defendant is viewed as a flight risk or poses a danger to the community.

2.      No excessive fines

Fines must be proportionate to the crime; the more serious the crime, the higher the bail.

3.      No cruel and unusual punishment

The U.S. Supreme Court has ruled that “cruel and unusual” is an “evolving standard,” changing as society’s attitudes change.  Punishments that may have been constitutional and permissible in the past may not be today or in the future as society’s standards change.  “Cruel and unusual” has been defined as:

 

 

Supreme Court Guidelines the Death Penalty

The U.S. Supreme Court has established guidelines to for states using the death penalty to ensure that it is used fairly and evenly (and not randomly and capriciously as the Supreme Court ruled it was being used prior to 1976.)

 

Death Penalty guidelines

1.     No mandatory death penalty

2.     A capital crime has to involve taking a human life.

3.     Consideration has to be given to the defendant’s character and record

4.     Consideration must be given to relevant aggravating and mitigating circumstances.  

5.     No execution of juveniles (17 and under)

6.     No execution of the mentally retarded 

7.     Automatic review of all death sentences by state supreme courts 

 

 

CRIMINAL JUSTICE RIGHTS (A review and summary)

I.  RIGHTS OF CRIMINAL SUSPECTS

1.         No unreasonable searches & seizures--  police need a valid search warrant or probable cause in most cases.

2.         Exclusionary rule - illegally seized evidence cannot be used - Amendment 4.

3.         Wiretapping & electronic eavesdropping-- police need a prior court order--protected by the right to privacy and Amendment 4--no unreasonable searches & seizures.

4.         Protection from self-incrimination & coerced confessions--Amendment 5--includes right to remain silent

5.          Miranda rights--When taken into custody and questioned, based on Amendments 5 & 6, police must read the suspect their rights (to protect the less educated who may not know what their rights are). These rights include:

·   Your right to remain silent

o  Anything you say can be used against you

o  Your right to a lawyer

o  If you are too poor to hire a lawyer, the court will provide you with one

o  You can stop questioning at any time and request to see a lawyer

II    RIGHTS OF THE ACCUSED

·         Indictment by a grand jury--for all felonies--Amendment 5

·         Admission to bail--no excessive bail, to be released while awaiting trial--Amendment 8

·         Speedy trial- never defined, except--no unreasonable delays--Amendment 6

·         Public trial - must be open to public and press--Amendment 6

·         Impartial jury- randomly selected B no opinion or quilt or innocence when selected & no ties to case or defendant

·         Right to counsel (lawyer) - Amendment 6 - If you cannot afford to hire own lawyer, court must appoint one.

·         Right to confront witnesses --know witnesses against you & cross-examine them--Amendment 6

·         Right to know Charges against you --to prepare your defense --Amendment 6

·         Right to subpoena witnesses-- to obtain witnesses on your behalf for your defense--Amendment 6

III      PUNISHMENT AND REVIEW OF CONVICTION

·         Sentencing--generally can choose to be sentenced by a judge or jury.

·         Freedom from cruel and unusual punishment - Amendment 8 - Death Penalty and Punishment

·                     a) no torture or barbarous punishment (branding, whipping, castration)

·                     b) sentence must be reasonable - in proportion to the crime

·                     c) death penalty constitutional if certain Supreme Court guidelines are followed to guarantee fairness in its use

Right of Habeas corpus - Article 1, Section 9 - protection against false arrest – a suspect who believes he/she has been falsely arrested and/or illegally detained they can ask to be taken before judge and those detaining him/her must justify why the suspect is being held.  If they cannot do that to the satisfaction of the judge or magistrate, that judge or magistrate will order the release of the suspect.   –

Right to Appeal-- Although this is not an absolute right and there is no guarantee your appeal will be accepted, you can appeal and attempt to convince the court of appeals that an important error was made in the lower court which affected the "fairness" of the trial.

The 2^nd Amendment

Gun control, the Constitutional Issue, and the Pros and Cons.

 

Amendment 2 “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

 

The U.S. Supreme Court Interpretation of the 2^nd Amendment

o       The US Supreme Court has interpreted the 2^nd Amendment, beginning in the 1870s, when it was VERY conservative to:

o        applies to a collective right to bear arms, not an individual right (contrary to NRA)

o          applies to the defense of our nation and not personal protection of our family or ourselves (contrary to what the NRA has long argued)

 

The Pros and Cons of Gun Control

A.  Pros

-Eliminates crimes of passion

-Restricts access from mentally unstable persons

-Limiting dangerous types of guns owned—assault guns which are guns of war, not guns for hunting or self defense

-2nd Amendment does not guarantee and individual right to bear arms

-More likely to be killed by someone you know—

-More likely to be turned against you-- thus, having a gun makes a person more likely to be shot and killed

-Accidental shootings will be reduced

-Murder rates are lower in other countries where strict gun control exists (ex.: comparing the U.S. to Canada, Great Britain)

 

B.  Cons

-Criminals will still be armed

-2^nd Amendment’s right to bear arms is violated

-Produces more safety in one’s own home

-keeps the government in check—if you are armed, you can resist government tyranny

-Leaves law abiding citizens defenseless & criminals having the weapons (through the black market, their criminal acquaintances, etc.)