Ch. 2: Sources of Law
Fifth Amendment: Prohibition against double jeopardy
- A jurisdiction may not prosecute someone again for the same crime after the person has been acquired or convicted (prohibits punishing someone twice for the same offense) - Scenarios not consider as double jeopardy: first trail ended in a mistrial, first trial ended in a hung jury, the conviction is overturned by the appeal court. - You can be tried for a civil case, even if you acquitted for - The duel sovereignty doctrine: you can be prosecuted in both state and federal courts & you can be prosecuted in two different states
Fifth Amendment: Right against self-incrimination
- Basis for the Miranda warnings. - Right to remain silent, can refuse to speak to police about the crime - Can refuse to testify trial - Does not prohibit obtaining evidence from the defendant in the ways - Does not gave immunity against perjury (if the defendant lies on the stand, its still illegal)
What does the Fourth Amendment protect?
- Forbids unreasonable search and seizures - Stands directly between citizens and police - Established requirement of probable cause (probable cause indicates fair probability that a crime has occurred, less than burden of proof, but more than a hunch) - Probable cause must be established before: warrants may be issued, searches may take place, or seizures may take place
What does the Tenth Amendment protect?
- Principle of federalism and constitutionalism - Rights not delegated to the federal government by the Constitution are reserved for the states or individual citizens
What does the Sixth Amendment protect?
- Right to a speedy trial: Defendant must be brought to trail without 'unnecessary delay' - Right to a public trial - Right to notice of the charges against oneself - Right to an impartial jury - Right to counsel (At all critical stages: preliminary hearing, trial, one repeal) - Right to confront witnesses against oneself
What does the Fifth Amendment protect?
- Right to an indictment by a grand jury - Prohibition against double jeopardy - Right against self-incrimination - Due Process of Law - 'Takings Cause'
Fifth Amendment: Right to an indictment by a grand jury
- Serves as a check between the individual and the government. - There must be proof that the crime occurred - Hasn't been incorporated to the states (information is typically used at the state level)
What does the Eight Amendment protect?
1. Prohibition against excessive bail (courts do not have to set a bail among in all cases.) 2. Prohibits against cruel and unusual punishment (bans torture and bans punishment that is disproportionate to the offense)
What are the three main sources of law
1. The Common Law (or judge-made law) 2. Legislation: Constitution, Statues (State & Federal), and Ordinances 3. Administrative Regulations: May have the same force of law; enforced by the courts like a statute. Violations are typically viewed as civil rather than criminal transgressions (handled in civil court)
What does the Second Amendment protect?
Covers the right to bare arms. Historically, it was intended to protect the states and groups of citizens against oppression by the federal government. The government at state and local level cannot infringe on the right to bare arms
What does the Third Amendment protect?
Forbids the quartering of soldiers in a private home against the wishes of the owner at any time. A product of its time.
What does the First Amendment protect?
Freedom of Religion Freedom of Speech Freedom of Assembly
First Amendment: Freedom of Assembly
Government can still regular in certain instances (safety, traffic)
Substantive Due Process
Legislatures cannot pass laws that infringe on substantive rights (such as free speech and privacy)
What does the Ninth Amendment protect?
The Bill of Rights is not an exhaustive list of citizens' rights (natural law or natural rights approach) Example: the right to privacy (Griswold v. Connecticut, 1965) - general right to privacy can be inferred by the amendments
Total Incorporation
due process make entire Bill of Rights applicable to states
Fifth Amendment: Due Process of law
fair treatment through the normal judicial system, especially as a citizen's entitlement.
Fundamental rights
freedoms determined to be 'essential to the concept of ordered liberty.' Can only be infringed on if using strict scrutiny
Total incorporation plus
individual rights when examined together, create other rights (gives justices more leeway )
First Amendment: Freedom of Religion
no official, state-supported religion shall be established, nor shall the government interfere with individuals' religious practices. Governments can pass statues affecting religion only if 3 conditions are met: 1. Secular (health and safety concerns) 2. Primary purpose must not be pro or anti region 3. Statue can't have excessive entanglement with religion
Fifth Amendment: Takings Cause
taking land for public use (need for public road, parks)
Intermediate scrutiny standard
used for quasi-suspect classifications, law must be 'substantially related' to an important government purpose, and burden of proof lies primary with the state
Rational basis test
used if neither a fundamental right is being infringed upon nor a suspect classification is implicated. Courts will not strike down legislation if it appears to have some rational basis (states usually get the benefits of the doubt)
First Amendment: Freedom of Speech
Including hate speech. Also includes written statements and some physical acts. Government can regulate obscenity and speech that is likely to provoke a violent response (fighting words)
What does the Seventh Amendment protect?
Right to a trial by jury in federal civil trials (applies only to federal trials)
Selective Incorporation
Rights are incorporated from the Bill of Rights to the states as they are brought to the Court by the people. Gradual, piecemeal, and selective method of incorporation
Sources of Individual Rights
Rights that are possessed by the individual and protected him or her from others as well as the government. The U.S. Constitution has only 3 rights specifically mentioned: Right to seek to writ of habeas corpus (challenges the legality of someones detention), Prohibition on bills of attainder (punishment without a trial), Prohibition on ex post facto laws (after the fact laws are not allowed). Constitution mainly establishes the powers and limits of government (both state and federal)
Strict scrutiny review
State may not enact legislation that abridges a fundamental right unless (1.) state must have a 'compelling interest' and (2.) legislation must be 'narrowly tailored' as to only abridge the right as is absolute necessary.
The Bill of Rights
The states desired more clear-cut regulations outlined in the Constitution. Led to the addition of the Bill of Rights: First ten amendments to the Constitution & Sets out a total of 23 individual rights. Rights include protections from a variety of government action and originally were only intended to apply to actions taken by the federal government
Due Process & the 14th Amendment
This contains three classes and protests three distinct interest: due process, equal protections of the laws, and privileges or immunities (rights). Therefore, states cannot make unequal, arbitrary distinctions between people
Type of Incorporation
Total Incorporation Total incorporation plus Fundamental Rights/ Ordered Liberty Selective Incorporation