Due Process

1. Due Process Current Issues – Libertyville HS

2. 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

3. 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

4. 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

5. 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

6. 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

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 • 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

11. 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!

12. 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

13. 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?

14. 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)

15. 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

16. 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

17. 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?

18. 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