Government – Libertyville HS Due Process Government – Libertyville HS

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”? What is a “hearing”? 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