Government – Libertyville HS

Due Process

What is Due Process?

Due Process is part of the Fifth Amendment (federal government)

Due Process is also part of the Fourteenth Amendment

DP protects a person from state / federal government from taking a person’s life, liberty or property without notice and a hearing

What is Due Process? What is “notice”?

The government must tell someone before it takes their property or liberty

Fundamental right – this MUST happen in a criminal or civil case

What is a “hearing”? The government must

give a person the opportunity to defend herself

What is Due Process? Examples of what Due

Process protection gives a person Right to a fair and public

trial Right to be present at

your own trial Right to an impartial

jury Right to testify at own

trial Laws must be written so

a reasonable person can understand them

What is Due Process?

Examples, continued Taxes may only be

taken for public purposes

Property may be taken by the government only for public purposes

Owners of taken property must be fairly compensation

What is Life, Liberty & Property?

Life = government lawfully executing a person

Liberty = government detaining or imprisoning a person FOR ANY REASON Stop on street Send to prison for life

Property = government taking your money or stuff

Due Process

The key to due process is making sure the

government treats people in a fundamentally fair way!

How Does Due Process Work? Step One: determine

interests of the government Ex 1– what are interests

of school when suspending someone? (discuss)

Maintaining a learning enviro

Safety of other students Ex 2 – what are interests

of government in a death penalty case? (discuss)

Punishing law breaker Preventing other serious

crime

How Does Due Process Work? Step Two: Determine how much “process” is

due in a given situation Due process is not rigid, but rather a flexible thing Depends upon situation Think of it as a balance between degree of loss of

person’s rights and importance of government’s interests

Two Parts of Due Process

Procedural due process Government must use

fair and just procedures whenever it wants to take away a person’s life / liberty / property

More procedures needed depending upon the amount of injury to a person’s life / liberty / property

Two Parts of Due Process

Substantive Due Process Government must

have a proper reason to take away a person’s life / liberty / property

This is the case regardless of the procedural due process followed!

Let’s Practice!: Question #1 Does a person have to talk with the police

at any time, in any situation? NO!

Never when conversation may implicate self in criminal activity (right against self incrimination)

If you are in custody, police must inform you of your constitutional right (1) to remain silent & (2) of your right to an attorney before questioning

But… Always good to talk to facilitate government

interest in law enforcement! AND your refusal to talk may lead police to

become suspicious

Lets Practice! Question #2 When can the police search a person’s home

or body? Government must have higher degree of

justification for higher degree of intrusion into liberty

Need… Search warrant based on probable cause, granted

by judge Warrant must specify what is to be searched /

seized Example: search warrant looking for AK-47 in

home; can police look in… Closet? Shoe box?

Let’s Practice! Question #2

Exceptions to Search Warrant requirement Safety of police (Terry “stop and frisk”) “hot pursuit” (ex. Pursuing someone into

house) Emergencies (ex responding to fire / call

for help) Search incident to arrest Consent of person being searched Plain view (where police are entitled to

enter, and violation of law is in plain sight)

Let’s Practice! Question #3

When may the police search my car? Search accessible interior of car stopped

for suspicious behavior During arrest of person in a car (driver

or passengers) may search accessible interior of car for safety and protection of police

“Inventory” search prior to impounding car (safety reasons)

If found pot in car, can be used as evidence BUT can’t open and search locked suitcase

Let’s Practice! Question #4 Can school officials search me or my

locker? Special responsibility that school has for all

students (education) Thus, schools have power to establish and enforce

rules to support a learning environment School officials act in place of parents (in loco

parentis); have obligation for safety, moral and educational development of students

School authorities have high interest in order, proper behavior

Students are usually minors w/o fully developed interests or rights

THUS – students have lower expectation of privacy while on school property

Let’s Practice! Question #4

So - Can school officials search me or my locker? On school property, officials only have to

show “reasonable suspicion” (lower degree of certainty) to justify search

Regarding lockers… What is student’s expectation of privacy?

Did student provide own lock, or does school possess keys to open all lockers?

Did school state that lockers were not private student areas?

Let’s Practice! Problem #5

Can school authorities conduct random drug tests of student athletes? How about random searches with drug sniffing dog? USSC – students have diminished

expectation of privacy in school School has strong interest in promoting

proper behavior, preventing drug use Drug tests not intrusive into student’s

privacy Similar analysis should apply to random

searches with drug sniffing dogs