Heckler’s Veto

Prior Restraint

Fighting Words

FREEDOM OF THE PRESS

• Why is freedom of the press important to our Democracy?

• Censorship-

• Prior restraint- – Pentagon Papers -

• Obscene Publications-

• Advertising- The Federal Trade Commission (FTC) regulates this area.

– Cigarettes– Alcohol

• Limits on Mass Media-

– Movies-

– Radio-

• Freedom Of Information Act-

• Sunshine Laws-

• Shield Laws-

Freedom of Religion

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

• Establishment Clause• Free Exercise Clause

Everson v. Board of Education

• New Jersey School Bus Case

Engel v. Vitale

• Outlawed reading of the Bible in public schools

Sante Fe Independent School District v. Doe

• Outlawed student led prayers at high school Football games

Westside Community Schools v. Mergens

• Allowed for after school religious groups

Tammy Kitzmiller, et al. v. Dover Area School District

• Intelligent Design Case

Aid to Public Schools

• Must pass the lemon test– Lemon v. Kurtzman

Merry Christmahanaquanzika

• Seasonal religious displays are allowed on public property as long as other religions or secular displays also accompany the displays.

Freedom Of Assembly• ASSEMBLY IN PUBLIC PLACES:

• ASSEMBLY ON PRIVATE PROPERTY:– REGULATIONS ON ASSEMBLIES:

• CONFLICTS WITH OTHER RIGHTS: Freedom of Assembly may not interfere with the functions of government, public interest, or the basic rights of others.

• UNPOPULAR ASSEMBLIES:– Heckler’s Veto: Hostile Onlookers can stop an otherwise

peaceful Assembly

Due Process Under the Bill Of Rights

• Principle of Due Process– Protects citizens from arbitrary or unjustified

acts by the government

• Two aspects of Due Process– Substantive– Procedural

Being safe in you home and Person.

• 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.

Illegal search and seizure

• How the police secure a warrant– They appear before a judge or magistrate– Police swear under oath they have probable

cause– The judge issues a warrant that describes the

place to be searched and the specific persons or items to be seized.

Probable Cause

• Reasonable belief a crime is being committed or has been committed

Florida v. J.L.

• Anonymous tip

Minnesota v. Carter

• Plain View

Lidster v. Illinois

• Informational Roadblocks

Arrests

• When the police make an arrest, they do NOT need a warrant to search the area in which a suspect may gain access to a weapon.

Warrant for Arrest

• Most arrests occur without one….Police can arrest a person without a warrant provided they have reason to believe a person has committed or is about to commit a crime.

Fleeing at the sight of police

• Illinois v. Wardlow

Terry v. Ohio

Sibron v. New York

Automobiles

• Police need no warrant to search a car, plane, or boat they believe involved in illegal activity. Movable crime scene.

Mapp v. Ohio

Search and Seizure Continued

• Can the police use evidence against the accused if the evidence found did not appear on the warrant? – It Depends

• Nix v. Williams• US v. Leon• Arizona v. Evans• Maryland v. Garrison

Nix v. Williams• Williams was arrested for the murder of a ten-year-old girl who's

body he disposed of along a gravel road. State law enforcement officials engaged in a massive search for the child's body. During the search, after responding to an officer's appeal for assistance, Williams made statements to the police (without an attorney present) which helped lead the searchers to the child's body. The defendant's Miranda rights were only read to him after his arrest.

• Question Presented • Should evidence resulting in an arrest be excluded from trial

because it was improperly obtained? • Conclusion • No. The Court relied on the "inevitable discovery doctrine," as it held

that the exclusionary rule did not apply to the child's body as evidence since it was clear that the volunteer search teams would have discovered the body even absent Williams's statements.

US v. Leon• The exclusionary rule requires that evidence illegally seized must be excluded from

criminal trials. 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 the affidavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial.

• Question Presented • 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 mistakenly issued search warrant 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.

Arizona v. Evans• The police stopped Evans for driving the wrong way down a one-way street. After running his

driver's license through their computer, the police found that there was a warrant out for his arrest. Arresting Evans, the police searched his car and found marijuana.

• A search "incident to arrest" is generally understood to be constitutional. However, it turned out that the misdemeanor warrant that appeared on the police officer's computer was a mistake. The warrant had been withdrawn. At his trial, Evans argued that the computer mistake meant the search of his car was illegal. Because his car was illegally searched, he stated, the exclusionary rule should apply to the marijuana the police found.

• The Supreme Court of Arizona basically agreed with Evans that the search and resulting drug charges were unconstitutional. They ruled that because the exclusionary rule is meant to deter police employees from making mistakes in the process of searching for and seizing evidence, computer records were not exempt from the rule.

• In 1994, the Supreme Court of the United States decided to hear the case upon appeal from the Arizona police.

•Questions to Consider:

• What is the purpose of the exclusionary rule? 

• Should it apply in this case? Why or why not? 

• Predict the outcome of the case.

Arizona v. Evans---Outcome

• They decided that the exclusionary rule was created to stop police misconduct. In this case, the Court said no misconduct had occurred.

• The Court also decided that, because there is no evidence that record keeping employees were inclined to ignore the Fourth Amendment, the computer error was probably a result of pure human error rather than an attempt to undermine the rights of individuals.

• Without evidence that extending the exclusionary rule to mistakes made by record keeping employees would change police behavior, there was no reason to believe that finding for Evans in this case would make a police officer more accurate. After all, they determined, the officer was just doing his job.

Maryland v. Garrison

• Officers had a warrant to search for drugs on the 3rd floor of a building. Not realizing there were two apartments, they searched the wrong one and found drugs.. Can those drugs be used as evidence against the occupants of the apartment since it was an honest mistake.

Limiting the scope of the Exclusionary rule

• Inevitable Discovery

• “Good Faith” Exception

• “Honest” Mistakes

What if illegally obtained evidence leads to the collection of other evidence through the

use of a warrant?•

– Fruit of the poisonous treeevidence gathered with the aid of information obtained illegally. The logic of the terminology is that if the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") would be likewise.

Searches By Officials Without A Warrant

• Airports and borders

• Customs agents and mail

• EPA Fly-overs

• Teacher and Administrator searches

School Drug Testing

• Can members of sports teams be subject to random school drug testing?

• What about chess club, band, and quiz bowl members?

• Complete “One Test Too Many”

Vernonia School Dist. V. Acton

Facts of the Case • An official investigation led to the discovery that high

school athletes in the Vernonia School District participated in illicit drug use. School officials were concerned that drug use increases the risk of sports-related injury. Consequently, the Vernonia School District of Oregon adopted the Student Athlete Drug Policy which authorizes random urinalysis drug testing of its student athletes. James Acton, a student, was denied participation in his school's football program when he and his parents refused to consent to the testing.

Vernonia Decision• Question Presented • Does random drug testing of high school athletes violate the

reasonable search and seizure clause of the Fourth Amendment? • Conclusion • No. The reasonableness of a search is judged by "balancing the

intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests." In the case of high school athletes who are under State supervision during school hours, they are subject to greater control than over free adults (in loco parentis) . The privacy interests compromised by urine samples are negligible since the conditions of collection are similar to public restrooms, and the results are viewed only by limited authorities. Furthermore, the governmental concern over the safety of minors under their supervision overrides the minimal, if any, intrusion in student-athletes' privacy.

New Jersey v. TLO

• New Jersey v. T.L.O. (1985) upheld the search of lockers and other personal space while on school property, indicating that students are not afforded the same rights as adults in other settings and stating that while acting in loco parentis, school officials are still representatives of the state.

Electronic Surveillance Requires a Warrant

• Katz v. The United States– Acting on a suspicion that Katz was transmitting gambling

information over the phone to clients in other states, Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challenged his conviction arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth itself. The Court granted certiorari.

Katz Decision• Question Presented • Does the Fourth Amendment protection against unreasonable

searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?

• Conclusion • Yes. The Court ruled that Katz was entitled to Fourth Amendment

protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.

Gideon v. Wainright

• Gideon was charged in a Florida state court with a felony for breaking and entering. 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, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison.

Gideon 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?

Gideon Decision

• In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady. 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.

Escobedo v. Illinois

• Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer. Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder.

Escobedo Question

• Was Escobedo denied the right to counsel during questioning as guaranteed by the Sixth Amendment?

Escobedo Decision

• Yes. Justice Goldberg, in his majority opinion, spoke for the first time of "an absolute right to remain silent." Escobedo had not been adequately informed of his consitutitonal right to remain silent rather than to be forced to incriminate himself. The case has lost authority as precedent as the arguments in police interrogation and confession cases have shifted from the Sixth Amendment to the Fifth Amendment, emphasizing whether the appropriate warnings have been given and given correctly, and whether the right to remain silent has been waived.

Miranda v. Arizona

• In 1963, Ernesto Miranda (born in Mesa, Arizona in 1941, and living in Phoenix, Arizona with only an elementary school education) was arrested for robbery, kidnapping and rape. He was interrogated by police and confessed. At trial, prosecutors offered only his confession as evidence. Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years on both charges. Miranda's lawyer, Alvin Moore, appealed to the Arizona Supreme Court but the charges were upheld.

Miranda 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?

Miranda 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”. 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.

Fifth Amendment

• Protect the rights of the accused

Grand Jury Investigation

• A group of people are called together to look at evidence and decide whether it is sufficient to justify a criminal trial. the right to such a grand jury hearing is granted to all cases involving a serious federal crime, particularly a capital crime- one for which THE DEATH penalty may be given.

Grand Jury Continued

– The grand jury meets in secret to examine evidence collected by the prosecuting attorney.

– The prosecutor also presents an INDICTMENT (formal statement charging the accused person with certain crimes)

– if the members of the grand jury agree that the prosecutor’s evidence is strong enough, they return a true bill of indictment.

Double Jeopardy

• Exceptions:» state and federal COURTS (many crimes are

against both state and federal laws.» civil and criminal courts (damages and criminal

charges)» hung jury- the jury cannot agree on a verdict.» organized crime act-federal prosecutors may

appeal cases in which they feel the jury has given a penalty that is too light. this act was intended to secure stiffer penalties for organized crime.

Self Incrimination

• Limits– Only may refuse to provide testimony that

incriminates you.– Courts have the final word on its use– May be offered immunity for testimony

• Physical Evidence

Eminent Domain

• New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Kelo Susette and others whose property was seized sued New London in state court. The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for New London.

Kelo Question Presented

• Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy?

Kelo Conclusion

• No. In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'"

THE SIXTH AMENDMENT

• Guarantees:• ENSURES A FAIR & SPEEDY TRIAL-- a prompt

trial is important for several reasons.• For the innocent it means

– less difficulties– less financial losses– less public disgrace associated with criminal charges

• Less chance of witnesses – moving away– forgetting testimony– dying

– What is a “speedy trial”the supreme court has never defined this. instead, they look at each decision on a case by case basis considering:

• Length of delay• Reason for delay• Did the accused demand a speedy trial• Was harm done

Television Coverage at Trials

– News coverage at trials—• SHEPPARD V. MAXWELL 1966- SHEPARD’S

TRIAL WAS THE FOCUS A NUMEROUS DAMAGING NEWS REPORTS THAT HIS JURERS READ. HIS CONVITION WAS OVERTURNED.

• TODAY- OVER HALF OF THE STATES ALLOW TELEVISION COVERAGE OF TRIALS.

The 6th Amendment Guarantees an Impartial Jury of your peers.

• CHOOSING AN IMPARTIAL JURY – JURORS ARE USUALLY CHOSEN FROM A LIST

OF Taxpayers– LAWS IN SOME STATES DISQUALIFY CERTAIN

GROUPS OF VOTERS – laws in some states disqualify certain groups of

voters• lawyers• military personnel• mentally ill people• people unable to read or write• people unable to speak English

Exemptions (people who CAN be excused from serving)

• elderly• doctors• dentists• teachers• persons who jobs could be jeopardized by

spending time on jury duty

The 6th Amendment guarantees:

• The Right to know the charges against you • THE ACCUSED MUST RECEIVE • Prisoner’s right to demand a writ of Habeas Corpus

• The Right to confront (hear and see) witnesses testifying against you

• The Right to call defense witnesses • The Right to legal advice

– The Gideon case • PUBLIC DEFENDERS-

– FELONIES- – Misdemeanors- – The Escobedo trial

– The Miranda decision

Rights of the accused on trial• No unreasonable search and seizure• Arrest on warrant or probable cause• Informed right to counsel and right to remain silent• No excessive Bail• No coerced confession• Grand Jury• Informed charge or indictment• Do NOT have to take the stand• Speedy trial• Confront Witnesses• Right to Counsel• Impartial Jury• Verdict of jury• No double jeopardy• Right to appeal• No cruel or unusual punishment

Rights of the Accused

• Robin Banks is accused of a premeditated homicide. Describe the process of investigating and attempting to bring Robin to justice while respecting the rights that Robin is entitled to.

The 8th Amendment Guarantees the protection from

cruel and unusual punishment and excessive bail

• Limits on bail

– Excessive bail- has never been clearly defined. In general, the amount depends on a few things.

• BAIL REFORM ACT OF 1966- – Requires federal officials to release persons who

cannot raise bail unless there is reason to believe they will not appear in court or if they are accused of a capital crime.

– This law also provides that the time a person spends in prison waiting for their trial shall be subtracted from any sentence given later.

DEATH PENALTY

• The death penalty has been an issue of controversy where many claim it is in violation of the 8th Amendment.

Methods Of Execution

• Methods of execution vary between states:– Hanging– Firing Squad– Electric Chair– Gas Chamber– Lethal Injection

Hanging• Hanging is still used in Delaware and Washington,

although both have lethal injection as an alternative method of execution. The last hanging to take place was January 25, 1996 in Delaware.

• For execution by this method, the inmate may be weighed the day before the execution, and a rehearsal is done using a sandbag of the same weight as the prisoner. This is to determine the length of 'drop' necessary to ensure a quick death. If the rope is too long, the inmate could be decapitated, and if it is too short, the strangulation could take as long as 45 minutes. The rope, which should be 3/4-inch to 1 1/4-inch in diameter, must be boiled and stretched to eliminate spring or coiling. The knot should be lubricated with wax or soap "to ensure a smooth sliding action," according to the 1969 U.S. Army manual.

Firing Squad• Firing squad still remains a method of execution in Utah and Idaho, although

each allow lethal injection as an alternative method and only Utah allows the inmate to choose this method. The most recent execution by this method was that of John Albert Taylor. By his own choosing, Taylor was executed by firing squad in Utah on January 26, 1996.

• For execution by this method, the inmate is typically bound to a chair with leather straps across his waist and head, in front of an oval-shaped canvas wall. The chair is surrounded by sandbags to absorb the inmate's blood. A black hood is pulled over the inmate's head. A doctor locates the inmate's heart with a stethoscope and pins a circular white cloth target over it. Standing in an enclosure 20 feet away, five shooters are armed with .30 caliber rifles loaded with single rounds. One of the shooters is given blank rounds. Each of the shooters aims his rifle through a slot in the canvas and fires at the inmate. (Weisberg, 1991)

• The prisoner dies as a result of blood loss caused by rupture of the heart or a large blood vessel, or tearing of the lungs. The person shot loses consciousness when shock causes a fall in the supply of blood to the brain. If the shooters miss the heart, by accident or intention, the prisoner bleeds to death slowly.

Electric Chair• Today, electrocution is used as the sole method of

execution only in Nebraska. • For execution by the electric chair, the person is usually

shaved and strapped to a chair with belts that cross his chest, groin, legs, and arms. A metal skullcap-shaped electrode is attached to the scalp and forehead over a sponge moistened with saline. The sponge must not be too wet or the saline short-circuits the electric current, and not too dry, as it would then have a very high resistance. An additional electrode is moistened with conductive jelly (Electro-Creme) and attached to a portion of the prisoner's leg that has been shaved to reduce resistance to electricity. The prisoner is then blindfolded. (Hillman, 1992 and Weisberg, 1991)

• After the execution team has withdrawn to the observation room, the warden signals the executioner, who pulls a handle to connect the power supply. A jolt of between 500 and 2000 volts, which lasts for about 30 seconds, is given. The current surges and is then turned off, at which time the body is seen to relax. The doctors wait a few seconds for the body to cool down and then check to see if the inmate's heart is still beating. If it is, another jolt is applied. This process continues until the prisoner is dead. The prisoner's hands often grip the chair and there may be violent movement of the limbs which can result in dislocation or fractures. The tissues swell. Defecation occurs. Steam or smoke rises and there is a smell of burning.

Gas Chamber• Today, five states authorize lethal gas as a method of execution, but

all have lethal injection as an alternative method. A federal court in California found this method to be cruel and unusual punishment. The last use of a gas chamber was on March 3, 1999, when Walter LaGrand, a German national, was executed in Arizona.

• For execution by this method, the condemned person is strapped to a chair in an airtight chamber. Below the chair rests a pail of sulfuric acid. A long stethoscope is typically affixed to the inmate so that a doctor outside the chamber can pronounce death. Once everyone has left the chamber, the room is sealed. The warden then gives a signal to the executioner who flicks a lever that releases crystals of sodium cyanide into the pail. This causes a chemical reaction that releases hydrogen cyanide gas. (Weisberg, 1991)

• The prisoner is instructed to breathe deeply to speed up the process. Most prisoners, however, try to hold their breath, and some struggle. The inmate does not lose consciousness immediately. According to former San Quenton, California, Penitentiary warden, Clifton Duffy, "At first there is evidence of extreme horror, pain, and strangling. The eyes pop. The skin turns purple and the victim begins to drool" (Weisberg, 1991).

Lethal Injection• Today, 37 of the 38 states that have the death penalty use this

method. • When this method is used, the condemned person is usually bound

to a gurney and a member of the execution team positions several heart monitors on his skin. Two needles (one is a back-up) are then inserted into usable veins, usually in the inmates arms. Long tubes connect the needle through a hole in a cement block wall to several intravenous drips. The first is a harmless saline solution that is started immediately. Then, at the warden's signal, a curtain is raised exposing the inmate to the witnesses in an adjoining room. Then, the inmate is injected with sodium thiopental - an anesthetic, which puts the inmate to sleep. Next flows pavulon or pancuronium bromide, which paralyzes the entire muscle system and stops the inmate's breathing. Finally, the flow of potassium chloride stops the heart. Death results from anesthetic overdose and respiratory and cardiac arrest while the condemned person is unconscious.

The 9th Amendment

• Right to privacy – ZONES OF PRIVACY-

• PERSONAL INFORMATION- • PERSONAL RELATIONSHIPS-

Roe vs. Wade

• Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.

Roe Question Presented

• Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?

Roe Conclusion

• The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

14th Amendment

• Does the Bill Of Rights only apply to the Federal Government?

14th Amendment Extension of the Bill Of Rights

• Through a series of Supreme Court cases, the Court established that the Due Process clause in the 14th Amendment applies to the states as well as the national government.