LS500 Legal Method and Process

1. LS500Legal Method and Process Unit 7 Due Process, Procedural, Substantive, and Equal Protection Dr. Christie L. Richardson Kaplan University

2. Due Process of Law The core meaning of the Due Process Clause is that laws protecting life, liberty, and property must be protected by all branches and officials of the government. What is due process of law? Guarantee of government fairness. Government cannot take away our right to life, liberty, or property, unless it provides us with the chance to protect our interests that is called due process. Protects us from arbitrary and unreasonable actions by the government. Applies to government actions - NOT private actions.

3. Limitations of Due Process 1st - Growth of government actions and not private ones. Intertwines public and private actions causing difficulty in drawing a line between the two. 2nd - Due process must apply to “something” that belongs to a person alleging deprivation. Life Liberty Property NOT happiness You must have a “right” or be “entitled” to something.

4. Limitations of Due Process Due process is divided into procedural and substantive. Procedural Requires before any deprivation, there must be NOTICE and OPPORTUNITY for a FAIR hearing before someone neutral and competent. Substantive Requires that laws be reasonable attempts to achieve legitimate government goals while putting the least burden on people’s rights. Courts examine the content of laws to ensure they do not violate traditional notions of fairness.

5. Procedural and Substantive Due Process Procedural Due Process Concerned with the manner in which government acts Prevent arbitrary government Avoid mistaken deprivations Know about and respond to charges Promote a sense of official legitimacy Substantive Due Process Freedom of contract Liberty of enterprise Discrimination Reasonableness standard to balance legitimate government interests

6. Substantive Due Process This refers to the essence of life, liberty, and property. The doctrine of Substantive Due Process holds that the due process clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. Stated within the Bill of Rights of the United States Constitution. Court views whether or not you have a fundamental right to your claim. Judicial review then takes over. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

7. Substantive Due Process Once the federal courts decide what substantive rights are protected by Substantive Due Process, it can use judicial review to enforce these rights by reviewing all state legislation for compliance with these rights. Substantive due process defines criminal offenses and their penalties.

8. Right to Remain SilentFifth Amendment A person cannot be compelled in any criminal case to be a witness against himself. Government must prove “beyond a reasonable doubt”. Protects individuals against coerced confessions, falsely admitting guilt, and protects guilty from escaping sanctions. Miranda v. Arizona 384 U.S. 436 (1966). Protects individuals only against verbal testimony. Individual may be compelled to provide blood, hair, voice, and handwriting samples. Participate in a lineup. Put on articles of clothing.

9. Double JeopardyFifth Amendment No person shall “be subject for the same offense to be twice put in jeopardy of life or limb”. Once acquitted, he or she can never be tried again for the same crime. EXCEPT When new evidence is brought to the court . . . Evidence violates state and federal law (can be tried in state AND federal courts). Don’t forget about the potential civil case . . . Defendant cannot be convicted of both murder and manslaughter for the same killing, but he or she can be convicted of both murder and robbery, if the murder arose out of the robbery.

10. Right to CounselSixth Amendment Guarantees the accused the assistance of counsel for his defense in felony cases, Gideon v. Wainwright, 372 U.S. 335 (1963). The right to appointed counsel is not limited to court, but extends to any time the police wish to ask a suspect questions (Miranda). This right was extended to misdemeanor cases where imprisonment might result, Argersinger v. Hamlin, 407 U.S. 25 (1972).

11. Right to Confront WitnessesSixth Amendment Defendant be informed of the nature and cause of the accusation. Be confronted with the witnesses against him or her. Have compulsory process for obtaining witnesses in his or her favor. Defendant can subpoena witnesses to testify in his or her defense. Defendant has unlimited right to cross-examine adverse witnesses.

12. Right to a Speedy and Public TrialSixth Amendment Defendants shall enjoy the right to a speedy and public trial. Again, does not define “speedy”. How “public” is “public” now? Court TV News media Neutral observers Barker v. Wingo, 407 U.S. 514 (1972) Established tests: Length of the delay Reasons for the delay Timely assertion of the right to a speedy trial Prejudice to the defendant as a result of the delay. Made on a case-by-case basis.

13. Right to BailEighth AmendmentBasic Purpose is to Return Court Prohibits excessive bail, but it does not describe what “excessive” pertains to. A person without means may find $25 to be excessive. A drug dealer may find no difficulty in raising $1M bail. Supreme Court ruled that defendants found to constitute a danger to public safety may be held without setting bail, United States v. Salerno, 481 U.S. 739 (1987). Release on Recognizance (ROR) Unsecured pledge to return to court on the appointed date to stand trial. Unable to post bail, you stay in jail!

14. Exclusionary RulePoisoned Fruit Doctrine Illegally seized evidence must be excluded from trial. Originally had three purposes: To protect individual rights from police misconduct; To prevent police misconduct; and To maintain judicial integrity. Created by the Supreme Court in 1914, and extended to state courts in 1961, Mapp v. Ohio, 367 U.S. 643 (1961). Premise was to control police behavior. Reasonable suspicion/probable cause Terry v. Ohio, 392 U.S. 1 (1968), allowed police to stop and frisk a suspect, even in the absence of probable cause (officer’s protection). “Terry Stops”

15. Procedural Due ProcessBalancing Test The private interest that will be affected by the official action; The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and The Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.