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Government – Libertyville HS Due Process. What is Due Process? Due Process is part of the Fifth Amendment (federal government) Due Process is part of.

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Presentation on theme: "Government – Libertyville HS Due Process. What is Due Process? Due Process is part of the Fifth Amendment (federal government) Due Process is part of."— Presentation transcript:

1 Government – Libertyville HS Due Process

2 What is Due Process? Due Process is part of the Fifth Amendment (federal government) Due Process is part of the Fifth Amendment (federal government) Fifth Amendment Fifth Amendment Due Process is also part of the Fourteenth Amendment Due Process is also part of the Fourteenth AmendmentFourteenth AmendmentFourteenth Amendment DP protects a person from state / federal government from taking a person’s life, liberty or property without notice and a hearing DP protects a person from state / federal government from taking a person’s life, liberty or property without notice and a hearing

3 What is Due Process? What is “notice”? What is “notice”? The government must tell someone before it takes their property or liberty The government must tell someone before it takes their property or liberty Fundamental right – this MUST happen in a criminal or civil case Fundamental right – this MUST happen in a criminal or civil case What is a “hearing”? What is a “hearing”? The government must give a person the opportunity to defend herself The government must give a person the opportunity to defend herself

4 What is Due Process? Examples of what Due Process protection gives a person Examples of what Due Process protection gives a person Right to a fair and public trial Right to a fair and public trial Right to be present at your own trial Right to be present at your own trial Right to an impartial jury Right to an impartial jury Right to testify at own trial Right to testify at own trial Laws must be written so a reasonable person can understand them Laws must be written so a reasonable person can understand them

5 What is Due Process? Examples, continued Examples, continued Taxes may only be taken for public purposes Taxes may only be taken for public purposes Property may be taken by the government only for public purposes Property may be taken by the government only for public purposes Owners of taken property must be fairly compensation Owners of taken property must be fairly compensation

6 What is Life, Liberty & Property? Life = government lawfully executing a person Life = government lawfully executing a person Liberty = government detaining or imprisoning a person FOR ANY REASON Liberty = government detaining or imprisoning a person FOR ANY REASON Stop on street Stop on street Send to prison for life Send to prison for life Property = government taking your money or stuff Property = government taking your money or stuff

7 Due Process The key to due process is making sure the government treats people in a fundamentally fair way!

8 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

9 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

10 Two Parts of Due Process Procedural due process Procedural due process Government must use fair and just procedures whenever it wants to take away a person’s life / liberty / property 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 More procedures needed depending upon the amount of injury to a person’s life / liberty / property

11 Two Parts of Due Process Substantive Due Process Substantive Due Process Government must have a proper reason to take away a person’s life / liberty / property 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! This is the case regardless of the procedural due process followed!

12 Let’s Practice!: Question #1 Does a person have to talk with the police at any time, in any situation? Does a person have to talk with the police at any time, in any situation? NO! NO! Never when conversation may implicate self in criminal activity (right against self incrimination) 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 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… But… Always good to talk to facilitate government interest in law enforcement! Always good to talk to facilitate government interest in law enforcement! AND your refusal to talk may lead police to become suspicious AND your refusal to talk may lead police to become suspicious

13 Lets Practice! Question #2 When can the police search a person’s home or body? 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 Government must have higher degree of justification for higher degree of intrusion into liberty Need… Need… Search warrant based on probable cause, granted by judge Search warrant based on probable cause, granted by judge Warrant must specify what is to be searched / seized Warrant must specify what is to be searched / seized Example: search warrant looking for AK-47 in home; can police look in… Example: search warrant looking for AK-47 in home; can police look in… Closet? Closet? Shoe box? Shoe box?

14 Let’s Practice! Question #2 Exceptions to Search Warrant requirement Exceptions to Search Warrant requirement Safety of police (Terry “stop and frisk”) Safety of police (Terry “stop and frisk”) “hot pursuit” (ex. Pursuing someone into house) “hot pursuit” (ex. Pursuing someone into house) Emergencies (ex responding to fire / call for help) Emergencies (ex responding to fire / call for help) Search incident to arrest Search incident to arrest Consent of person being searched Consent of person being searched Plain view (where police are entitled to enter, and violation of law is in plain sight) Plain view (where police are entitled to enter, and violation of law is in plain sight)

15 Let’s Practice! Question #3 When may the police search my car? When may the police search my car? Search accessible interior of car stopped for suspicious behavior 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 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) “Inventory” search prior to impounding car (safety reasons) If found pot in car, can be used as evidence If found pot in car, can be used as evidence BUT can’t open and search locked suitcase BUT can’t open and search locked suitcase

16 Let’s Practice! Question #4 Can school officials search me or my locker? Can school officials search me or my locker? Special responsibility that school has for all students (education) Special responsibility that school has for all students (education) Thus, schools have power to establish and enforce rules to support a learning environment 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 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 School authorities have high interest in order, proper behavior Students are usually minors w/o fully developed interests or rights Students are usually minors w/o fully developed interests or rights THUS – students have lower expectation of privacy while on school property THUS – students have lower expectation of privacy while on school property

17 Let’s Practice! Question #4 So - Can school officials search me or my locker? 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 On school property, officials only have to show “reasonable suspicion” (lower degree of certainty) to justify search Regarding lockers… Regarding lockers… What is student’s expectation of privacy? What is student’s expectation of privacy? Did student provide own lock, or does school possess keys to open all lockers? Did student provide own lock, or does school possess keys to open all lockers? Did school state that lockers were not private student areas? Did school state that lockers were not private student areas?

18 Let’s Practice! Problem #5 Can school authorities conduct random drug tests of student athletes? How about random searches with drug sniffing dog? 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 USSC – students have diminished expectation of privacy in school School has strong interest in promoting proper behavior, preventing drug use School has strong interest in promoting proper behavior, preventing drug use Drug tests not intrusive into student’s privacy Drug tests not intrusive into student’s privacy Similar analysis should apply to random searches with drug sniffing dogs Similar analysis should apply to random searches with drug sniffing dogs


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