How have the courts expanded due process rights?

Due Process Government can deprive on of life, liberty or property ONLY in a specific, prescribed manner. Cannot act arbitrarily and must be fair. Procedural Due Process – the manner in which the law is carried out (Criminal Procedure) Substantive Due Process – The limits placed on what govt can regulate. (Substance of the Law – ie. what is illegal)

Due Process Procedural Aims to ensure arrest and adjudication processes are fair and impartial Police must inform suspects of rights one must be informed of charges against them Right to confront witnesses against them etc Substantive Aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority Forbidding govt from prohibiting rights of blacks/women to vote.

Procedural Due Process 4 th Amendment – Warren Court ( ) incorporates right against unreasonable search and seizure to states. Weeks v. U.S. (1914) - Exclusionary Rule– Evidence obtained illegally cannot be used in Federal court. Mapp v. Ohio (1961) applied rule to states.

Post 9/11 Patriot Act (2001) – opened up 3 rd parties of suspects to search (library/medical records) allows agents to monitor “non-criminal” religious or political groups and detain immigrants for longer periods Foreign Intelligence and Surveillance Act (FISA) – Use of broad warrants to eavesdrop on large groups – Must obtain warrant from FISA court to wiretap Americans

1980’s – if police would have made discovery anyway or if discovery was in good faith 1990’s – clerical errors not enough for exclusion

Post 9/11 Are terrorists captured in U.S. part of war or domestic criminals? Does U.S. have to follow Geneva Conventions if Al Qaeda is not a signatory? POW’s or enemy combatants? Why Guantanamo Bay? Hamdi v. Rumsfeld (2004) – Cannot hold terror suspects without Habeas Corpus Hamdan v. Rumsfeld (2006) – U.S. must follow Geneva and cannot rely strictly on military commission trials.

School Searches – New Jersey v. TLO (1985) – school administrators have MORE leeway in searching students than do the police (reasonable suspicion)

Right to Counsel Powell v Alabama (1932) – States must provide indigent defendant atty in capital cases. Gideon v. Wainwright (1963) – Applied Powell case to ANY felony.

Self-Incrimination Miranda v. Arizona (1966) – also Warren Court All suspects must be told of – constitutional right to remain silent – anything they say can be used in court against them – right to atty to be present during questioning and one will provided if they can’t afford one Exceptions: a coerced confession alone may not be enough to overturn a conviction if other evidence is overwhelming Coerced crimes – entrapment – also prohibited

Cruel and Unusual Punishment Death Penalty? Furman v. Georgia, 1972 – Death penalty unconstitutional AS CURRENTLY APPLIED No, it is not cruel and unusual (Gregg v. Georgia) Today – Trials have 2 phases – Trial and sentencing. At sentencing aggravating and mitigating circumstances must be taken into account. Can’t be – arbitrary, capricious or discriminatory – Mandatory

Substantive Due Process If substance of the law violates one’s rights (even ones NOT specifically listed) it must be struck down unless there is a legitimate interest (public health, welfare or morals)

Right to Privacy Griswold v. Connecticut (1965) – State anti-birth control laws violated IMPLIED right to privacy found in the penumbra of several amendments Roe v. Wade (1973) – decision of a woman to abort fetus was private matter between her doctor and herself. Today – mandatory waiting periods, parental consent and late term restrictions all constitutional BUT informed consent of father NOT constitutional.