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The Process of Justice: An Overview
Criminal Due Process -Throughout the centuries, there have been many forms of justice, but not necessarily “due process” -Trial by ordeal -Ordeal = test -ExàBoiling water, red hot lead -If innocent: not burned (God would save) -Trial by battle -Dueling -Compurgation -If friends testified on your behalf -Due process relatively new idea
The Bill of Rights -First 10 amendments to the US Constitution -James Madison proposed 12 amendments, 10 were ratified in 1791 (#11 ratified in 1992) -B of R restricts government -Cannot… -First Amendment -Congress shall make no law respecting an establishment of a religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances -Prohibits an official religion -Second Amendment -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 -Not an absolute right -States can restrict -Third Amendment -No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law -Gov’t can’t force you to house soldiers -Fourth Amendment*** -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 -Search / arrest warrant -Fifth Amendment*** -No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in the cases arising in the land or naval forces or in the militia when actual service in time of war or public danger; nor shall any person be subject for the same offense 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 -Some crimes a grand jury must indict a suspect -“Double jeopardy” -No self-incrimination -DUE PROCESS -Imminent domain -Sixth Amendment*** -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, and to 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 counsel for his defense -Sets out the requirements for trial -Speedy and public trial -Impartial jury -Told of the accusation -Confrontation of accuser -Subpoena power -Right to lawyer -Seventh Amendment*** -In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the US, than according to the rules of the common law -Trial by jury in civil lawsuits -Eighth Amendment*** -Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted -Ninth Amendment -The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other retained by the people -Tenth Amendment -The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people -Because no rights are “absolute”, due process is not spelled out in Constitution -Bill of Rights not immediately applied -Slaves = property (not human rights) -Most amendments were only applied at the federal level, not state or local -Took Supreme Court to “nationalize” B of R
Nationalizing the Bill of Rights -Early on, the Supreme Court made several rulings that essentially stated the B of R only applied to federal authorities -Barron v. Baltimore -Not until after the Civil War did the US begin to nationalize the B of R -14th Amendment -No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws -Hurtado v. California (1894) -Due Process clause did not incorporate B of R -Gitlow v. New York (1925) -1st Amendment applies to state and local govt’s (prohibiting abridgement of freedom of speech) -Court ruled that freedom of speech was not an absolute, though -Powell v. Alabama (1932) (Scottsboro Boys) -States must provide defense counsel in capital cases -Partial incorporation of 6th Amendment
The 1960s Revolution -Chief Justice Earl Warren (R-CA) -Mapp v. Ohio (1961) -Unreasonable searches and seizures and “exclusionary rule” applicable to states -1962à8th Amendment incorporated -Gideon v. Wainwright (1962) -Right to counsel for indigent -1964àIncorporation of no self-incrimination -1965àRight to confront witnesses incorporated -Parker v. Gladden (1966) -Right to fair an impartial jury incorporated -1967àSpeedy trial and subpoena power for defense -1968àTrial by jury in serious crimes incorporated -Benton v. Maryland (1969) -Double jeopardy incorporated -Griswald v. Connecticut (1965) -Right to privacy -Overturned law outlawing contraceptive -Where in the Constitution is this located? -Not specifically stated anywhere Due Process in the 1990s -Not all aspects of B of R are incorporated -2nd Amendment -3rd Amendment -5th Amendment (grand jury indictment for capital crime) -7th Amendment (Trial by jury for cases involving $20+) -8th Amendment (Excessive bail / fines) -“Selective incorporation” -Incorporation radically changed criminal justice system -“Due process” more specific, but still not precise -Changes due to circumstances of crime, etc. -DP = asserting fundamental principles of justice -NOT a specific rule of law
Substantive Due Process -DP protection against unreasonable laws -Void-for-vagueness doctrine -If law is not clear to what or to whom it applies to violates DP
Procedural Due Process -Certain procedures are required before rights/property of a person can be taken by the gov’t -Notice of proceedings -A hearing -Opportunity to present defense -Impartial jury/judge -Atmosphere of fairness
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