First, Fourth, and Fifth Amendments

and not being allowed to by the government and over time you know the definition of first of all what is a religion because a lot of people claim they’re engaged in some religious activity or practice or belief and the court initially uh struggled with this but ultimately came down on the side of it’s it’s whatever a sincerely held belief is that you have so if you have a sincere belief that that you are religious then it is religion so it doesn’t have to be what was considered religion at the fountaining or anything uh like that and just you as long as you have a sincerely held belief uh so if you’re a conscientious objector for from going to war um it doesn’t really matter what religion that’s based on that’s a sincerely held belief you can uh claim a religious exe exemption for that um the court has been generally protective skipped ahead there on some slides of um free exercise claims historically by religious minorities like uh the Amish or Jehovah’s Witnesses who uh were fired from their jobs uh and denied unemployment benefits by the state court said you can’t do that you can’t fire them because of their religion or because they refuse to work on their Sabbath and then deny them unemployment benefits the courts also said that the Amish can’t be forced to attend public high school um if and because you know they want to opt out after junior high school because they don’t believe it’s good to send their kids to public high schools they can do that they can opt out as long as of course they gain the education on their own through homeschooling and that’s what the Amish do so the court was protective of religious minorities initially through the free exercise clause but now currently the court is protecting um private companies that claim that want to claim religious exemptions from participating in otherwise valid laws and the most recent example of that is the Obamacare uh case the Hobby Lobby case where you know the the company right Hobby Lobby uh doesn’t want to have to provide contraception contraceptive coverage to their employees because they say it violates the company’s the owners of the company’s religious beliefs and the Supreme Court narrowly upheld that in a 5 to4 decision uh recently and so um this has opened the floodgates for a lot of private organizations to come out now businesses corporations and say we shouldn’t have to participate in a law that goes against our religious beliefs and this is a prime example of the Court becoming more conservative uh over time now let’s let’s talk about the uh Free Speech Clause of the First Amendment so that’s it for religion that’s a lot to talk about with the religion Clauses um but with regard to the First Amendment freedom of speech Clause uh what the framers really intended there was freedom of political speech and that means if you’re saying something political that is the most protected speech there are other forms of speech that are not as protected like commercial speech advertising on TV right we don’t see television advertisements for cigarettes for example because that’s been banned uh and the court has said it’s okay to ban that uh because um the power because of the power of advertising because it’s not political speech um obscene speech obviously obscenity is is it can’t can be banned by governments um so the

longtime standard in political speech cases was clear and present danger and you probably heard about that right oliv rmes famously said in an early 20th century case that you can’t shout fire in a crowded theater um because that would create a clear and present danger and that’s a pretty speech protective test that means you can say pretty much anything you want short of that um but in 1969 the court um articulated the test a little bit further a little bit more in the liberal Direction a little bit more speed protective and said that the test isn’t clear in present danger it should be incitement to imminent Lawless action so if you’re making political statements um anything short of inciting people to actually um violate the law you can say it but if you say something that gets people to violate the law then that speech can be shut down so that’s a very speech protective test incitement to imminent Lawless action that is the test that is the law today now there’s other forms of speech there’s symbolic speech like burning the American flag can you burn the American flag the Supreme Court has narrowly held 5 to four yes you can because that’s political speech the guy in the case Texas vs Johnson from 1987 was burning an American flag at U the Republican National Convention to protest uh President Reagan and that was a political statement and so the court has said you can burn the American flag but the court has said you can’t burn your draft card because that’s government property and that interferes with the running of the draft obscenity cases um we mention I mentioned a second ago that that is not protected speech and the court has articulated a standard for what uh can be deemed obscene and therefore banned and what cannot and it’s whether the average person uh applying contemporary Community standards so local standards uh would find that the work whatever the work is a film uh a book whether the work taken as a whole not part of the work but the work taken as a whole appeals to the puant interests um and puant is you know lascivious that sort of thing uh so that’s the first part of the test and then whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law and whether the work taken as a whole lacks serious literary artistic political and scientific value so for example You Can’t Ban Franco zarelli’s film of Romeo and Juliet uh because uh it contains nudity in it um and the je the woman playing Juliet um is pretend you know in the film she’s pretending to be 16 years old but she’s really an 18y World actress or the film American Beauty the same thing we have actresses who are nude in that film who are really adults but pretending to be high school students the court says this is these are serious literary works and so they cannot be banned okay because the work has to be taken as a whole so obscenity student speech while students do have political speech rights and you can uh make political statements in school uh you cannot do that if it’s disruptive of the learning environment so the court has held as long as there’s no disruption of the learning environment you can go ahead and make political statements if it disrupts the learning environment then you cannot you could be

suspended uh the speech could be quashed uh campaign Finance of course Very controversial area of the law uh these days and um the court as you know has held uh in the citizens united case recently that um corporations do have a free speech right private corporations labor unions uh interest groups uh these private organizations can say whatever they want about uh political campaigns um so while the court allows restrictions on donations direct donations to specific candidates and the court has allowed those restrictions because of the uh because of corruption right because of bribery or because of the appearance of corruption the court has said because it looks like bribery so they can limit how much money we individually can contribute the candidates the court has said what we cannot do is limit the amount of money we can contribute to these uh individual groups these interest groups uh if they want to spend uh raise money and spend it to promote particular candidates they have a free speech right to do that and obviously a lot of Liberals are upset about that Bernie Sanders as you know has been saying we need a constitutional amendment to overturn Citizens United and as you know in order to overturn a Supreme Court case you have to have either another case that overturns it or a constitutional amendment that overturns it okay so that’s um freedom of speech now freedom of the press um is a similar area to freedom of speech but it looks specific but it deals specifically of course with the press and you know the newspapers and the television stations um that cover uh politics and freedom of the press is also not absolute and so uh the Press can’t publish obscene material they can’t publish material that compromises National Security they can’t incite violent action and student Publications also do not have the same kind of freedom of speech as let’s say the New York Times does uh again because of the disruptive learning environment and also because the court has held students simply do know as much as professional journalists in terms of what can and cannot be published and so uh principles have discretion to quash a student uh press um student newspapers and those sort of things if they feel articles are not appropriate okay so the Press does have the freedom to publish virtually anything they want about public figures those people who are in the public eye like politicians and celebrities and so forth but the Press may not publish information that they know is false if they do then Lial suits for monetary damages may result so if the Press knows if the New York Times knows that what they’re publishing about Donald Trump is false then Donald Trump can sue the New York Times for an infinite amount of money all right but he Trump would have to prove that the New York Times knew it was false and so that’s the test it’s a very difficult test to prove so you can see the test down there at the bottom of the slide uh the the the statement has to have been made with actual malice meaning we were trying to harm this person that is with knowledge that the information was false or with Reckless disregard for the truth we didn’t even try to figure out whether it was true we

just published it all right that’s why journalists are always trying to get two sources or more for everything they publish then they can make sure that they can’t be sued for reckless disregard for the truth they can believe that what they’re publishing is true because they have two or more sources okay so there are some limits on freedom of the press but not a lot the Press is pretty free now let’s talk about the final area uh freedom of assembly and then and petition um and you know again we talk about balancing right the right to assemble and the right to petition the government against the police power of the state to protect the health safety welfare and morals of the people and generally the Supreme Court has been very protective of the freedom to assemble in open public forums like public parks or streets or sidewalks or town squares or the seat of government so that’s why you often see people marching on the capital in Washington DC or on the mall in Washington DC these kinds of areas because they are public and they are government public spaces and so uh if you’re protesting there you can uh feel uh pretty self-confident that you have the right to do that and and and and your assembly cannot be stopped however in limited public forums and the court has said a school is a limited public forum and on private property like your front lawn let’s say the court has been less willing to extend assembly rights so you can’t protest uh on the private property of a political office holder you could try to stay on the sidewalk out in front but you might run into problems there too with the neighborhood better to go to the seat of government right the capital the legislature the White House and protest there peaceful public assemblies at the seat of government have garnered the most protection by the Supreme Court as where demonstrations in and around less public forums and private property have been more likely to be restricted okay so that’s a brief uh overview of the important areas of the first Amendment and you can see that it’s been a major point of contention um because there are numerous Provisions uh in the First Amendment and each one of those is controversial to be sure the Court’s record has been Mi mixed in a lot of these areas and that because that’s because the justice has change as we know recently we have a a new Supreme Court justice justice Gorsuch and he is a conservative a very strong conservative and so for the rest of your lives he’ll be on the Supreme Court voting in the conservative uh Direction which is to accommodate religion uh which uh you know is certainly one of those controversial first amendment areas for example indeed they just heard of a case involving uh The Establishment Clause on Justice gorsuch’s first day on the court and the case um involved whether or not public funds uh government funds could be given to religious schools to resurface their playgrounds uh with uh you know rubberize the playground so instead of asphalt we would put these crushed up old tires uh into this rubberized play ground all the public schools got the rubberized playground but the religious schools didn’t and so the religious schools have brought a lawsuit and says

that this is uh say that this is unconstitutional um to deny this to us and um it looks like the court is probably going to agree with them and and and rule that there can be again Aid to religious schools this time in the form of money to put in a rubberized playground on religious uh phrases I see uh uh the question is about the incitement phrase again and and that’s the First Amendment freedom of speech test for political speech the phrase is incitement to imminent Lawless action right and so Lawless action um we know what that is right people getting out of order um fights destruction of private property and then imminent Lawless action meaning it’s happening it’ll happen right now as soon as I say this phrase it’s going to happen imminent Lawless action so if I’m give a speech inciting people right to get out of order or to destroy property the police can come and arrest me because I’m inciting imminent Lawless action and so that is the test now if there’s nobody around you’re not inciting anything you can say whatever you want um and and if you know nobody gets out of order you can say whatever you want and so what a lot of people do um is try if they don’t like what the speaker is saying they try to get out of order they try to uh create violence they try to destroy property so that the police will come in and shut down the whole event and stop the speaker from happening and that is an interesting game that’s played out with regard to the First Amendment okay so um any further questions uh about the First Amendment before we move on to the fourth amendment I I’ve seen there have been some questions in the box but we have a couple minutes to answer any more know we’ve covered a lot and it’s uh it’s a lot to take in the First Amendment covers as we as we just saw many Provisions you know it it takes me an entire semester uh to teach all of that my students and go over all the Constitutional law cases so what we just covered in 20 25 minutes normally it takes 16 weeks of college to cover um so you have a kind of broad overview so the question is what could be a revision to the lemon test well that’s a really good question because um The Lemon test uh is controversial I already mentioned that Justice Kennedy who is the Swing Vote on a lot of these cases the fifth vote he doesn’t like the lemon test he prefers what he calls the coercion test coercion right are students coerced into participating in religion for example so he struck down prayer before a junior high school graduation ceremony prayer that was allowed by the school administrators and approved by the school administrators uh to have a rabbi come and give the sermon uh and Justice Kennedy said this is coercive um students don’t have a choice of whether or not to attend a graduation they they want to attend their graduations they’re going to attend their graduations and if a prayer is invoked then they have to stand up and participate in it or they have to feel feel like they’re participating in it and that’s coercive and so if you want to get Justice Kennedy’s vote and he’s the fifth vote in a lot of these cases you need to make it clear to him that the program is

coercive in some way in terms of promoting uh religion so that’s an important test there have been other tests the justices have articulated justice oconor has a test called the endorsement test whether the government is endorsing religion nobody agreed with her for that test and she’s of course no longer on the court so that test may not really be Val anymore um I guess we’ll see because the Court’s going to be deciding in this establishment clause case I mentioned about the rubberized uh playround for the religious school students uh we’ll see what the justices do with regard to the lemon test and whether they’ll use it or whether they’ll uh adopt Kennedy’s coercion test to get his vote indeed Kennedy might be the one who writes the opinion in the case and he’ll be talking about coercion uh if he uh if he’s lucky enough to write the opinion so anyway the um coercion test is the kind of alternative to look for in The Establishment Clause area I see someone ask about freedom of speech um yeah no this is actually a good one here about the words in God we trust on the money what the court has said in allowing that is the same thing with why they allow um prayer before legislative sessions the court calls that ceremonial deism right um deism meaning belief in a god um uh you know higher power power and they’re calling it ceremonial that that because it’s been around so long for hundreds of years in terms of prayer before legislative sessions or in God we trust on the money it’s not really a endorsement of religion it’s not really the government saying we are religious it’s just ceremonial you know it’s sort of like if you’re not religious and you go to the town square and you see the manora and you see the Christmas tree and the baby Jesus in the manger you don’t think oh I don’t agree with that religion you think oh that’s a cute little holiday display just like Santa and the reindeer it’s kind of ceremonial so that’s what the court is saying with regard to the money and that’s why that’s allowed same thing with prayer before legislative sessions all right so um why don’t we move along because we are uh due now to talk uh about um the Fourth Amendment um let’s let’s move along to the Fourth Amendment and and oh yeah I before we move along this is a good question from Mike about the Pledge of Allegiance that’s a controversial and and what you can uh what you’ll see is at the end of this PowerPoint I have a whole bunch of extra slides down here that cover all these cases including um the U uh Pledge of Allegiance case and so you can look at those slides on your own after the webinar but basically the court didn’t decide that case they they basically ducked it on some technical issue um but some justices made it clear that they think that the Pledge of Allegiance is allowed and and maybe it’s for ceremonial uh reasons um maybe not but the court has not squarely tested that issue yet whether the Pledge of Allegiance uh because it does say you know one nation under God whether that’s constitutional or not uh generally we

can guess that conservatives would allow it and liberals would not and right now right we have Justice Kennedy as the Swing Vote um what would he do is the Pledge of Allegiance coercive saying the word under God or is that just ceremonial and students aren’t really even paying attention anyway um but that that case has yet to be cited by the court but I think it will be uh in the coming years it’s just a matter uh of time okay um so anyway let let’s move along to the Fourth Amendment um Fourth Amendment also a very interesting important provision uh of the Constitution uh with uh all kinds of uh interesting parts to it so um the Fourth Amendment consists of two Clauses and both of those Clauses deal with criminal procedure and that’s the stuff that we see on TV in the movie right all the stuff with police and courtrooms and trials in terms of guilt or innocent uh that’s what we call criminal procedure the process by which we um you know go after the bad guys basically so what does it say in the Fourth Amendment it prohibits first of all unreasonable searches and seizures so that means that the government can’t simply search your house or task you to turn out your pockets or your purse to see what’s inside that would be unreasonable they have to have a reason to do it so uh unreasonable searches and seizures um are not allowed and you know searches and then seizures right taking what you have from you um that is not allowed but but only if it’s unreasonable right if it is a reasonable search or seizure then they can do that okay so um what is the what does that Clause of the Fourth Amendment actually say it says the right of the people to be secure in their persons right so that means you know you have some stuff in your pocket right uh you know that sort of thing you’re securing your person your houses obviously that’s self-explanatory um your papers and effects so the things that you’re carrying and so forth uh against unreasonable searches uh and seizures shall not be violated that’s the first provision of the Fourth Amendment um and then the second has to do with the procedural details for issuing search warrants right that’s a warrant is a order from a judge uh who might if you know the state wants to search uh somebody’s house uh they go to a judge they ask the judge for a search warrant the judge looks at the state’s evidence or reason for wanting the warrant and if the judge thinks there is a reasonable uh you know um suspicion a reasonable um uh idea probable cause that that maybe there’s a crime being committed or something then the judge will issue the search warrant um if not then there is no search warrant being issued so it says no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched or the person or things to be seized so the warrant uh when when the prosecutor goes to the

judge and asks for a warrant they have to be very specific about we want to look in this specific place or this specific person it can’t be a broad grant of authority that they’re seeking has to be very specific and it has to have probable cause so the judge is just the judge says do you have probable cause right to search what evidence have you found already what rumor have you heard what speculation is there you know they can consider that but but it has to be probable cause uh in order to get a warrant so there are times where warrants are not allowed because there is not probable cause and so the judge provides an important check against what we call overzealous prosecutors uh overzealous um district attorneys or States attorneys who would like to search people without enough uh evidence to move forward okay so uh let’s talk a little bit about what the uh court has done in this area uh historians agree that the framers were particularly concerned about General warrants and that’s what had been into effect historically um these General warrants lack the specificity for the persons of the places to be searched or the items to be searched but the Fourth Amendment caused very little public or political controversy when it was enacted at the founding uh it just wasn’t that controversial um which I guess makes sense because people you know don’t like the government intruding into their Private Affairs the Supreme Court didn’t even begin to delve into the Fourth Amendment until uh this 1886 case voyd versus the United States so the first hundred years of the country there really isn’t any Fourth Amendment uh challenges and that’s true of a lot of areas of constitutional law it really doesn’t happen until the 20th century with regard to civil rights and civil liberties that most of our um uh constitutional law is developed so it’s really relatively new in American history so anyway in that case Boyd versus U us the justice has held that a requirement to turn over personal papers for a customs investigation constitute an impermissible search and seizure so um that was a a protective decision right from right off the bat but one of the most litigated areas in constitutional law has to do with the question of when a warrant is necessary for a valid search and when evidence obtained without a warrant can be used in court and that’s a very important concept um Can EV uh that’s obtained without a warrant be used in court against you and that has been a controversial area for the Supreme Court to try to figure out over time uh the justices have attempted to strike a balance between protecting the rights of individuals against illegal searches and seizures and protecting the community from possible danger right that’s the idea we want to get the bad guys uh the court is generally required specific warrants based on probable cause so um these guidea General warrants are not allowed and if you don’t have probable cause then you’re not going to get a warrant okay so um this idea of the physical penetration rule this was the

uh Supreme Court’s initial rule in this area the law for the first 150 years of its history and the prevailing view was that the Fourth Amendment did not restrict police searches and seizures unless law enforcement physically intruded on a person’s property right like physically going through a person’s belongings or trespassing on that person’s private property so there has to be a physical penetration if the government is not physically penetrating a property then they can do whatever they want and you can imagine what this is going to lead to uh in the case of Olstead versus United States um the government used a wir tap right they didn’t get a warrant they simply went outside where the phone lines were and they put a wire tap on your phone they didn’t go inside your house and they listened in on all your conversations to hear if you were doing any crimes and uh they they they they heard some crimes they prosecuted this guy and he brought a case to the Supreme Court saying this guy didn’t have a warrant to EES drop uh you know the government didn’t have a warrant to EES drop on me and so this is unconstitutional and um the court disagreed with that in Olstead and allowed the government to continue to use wir Taps without warrants warrantless wi Taps to ease drop on people because it didn’t physically penetrate the house and so the government had a good thing going uh in the age of wiretapping uh but ultimately the court overturned that decision in 1967 and that’s relatively recent um no longer could warrantless wire Taps be used um the court said that all state and federal law enforcement agencies they must obtain warrants prior to wiretapping the court explained that search and seizure protections applied to people not to places so the physical penetration rule was no longer good law all right so um the cat’s decision in 1967 was important for changing the direction of Fourth Amendment law however the Supreme Court as we mentioned before has been conservative in recent years and those conservative justices increasingly conservative have scaled back some of the um exceptions to the idea that you have to have a warrant before you can search and so the requirement um you know that police seek out a judge and show that they have probable cuse in order to do a search and a seizure the court has said sometimes that’s just not practical sometimes time is of the essence and you can’t go seek out a judge you got to act fast so the court has carved out a number of exceptions to the general principle that police should obtain warrants to conduct searches at the same time the court has also placed limits on those exceptions and all searches whether under warrant or not must be based on probable cause or Reasonable Suspicion so even if you don’t have a warrant you can’t just go out there and wiretap people’s phones or whatever okay you have to have probable cause to to do it and even if you didn’t weren’t able to get a warrant let’s say right away or what the court is called Reasonable Suspicion which is a little bit less of a standard than probable cause but it

means the police do believe um something bad is happened it’s reasonable for them to have concluded that all right so here are the seven most common exceptions uh to this warrant requirement searches incident to a valid arrest so if you know the police arrest you they can go ahead and search you and search the immediate area around you because of safety ideas right you might have a weapon on you uh you know you might have uh drug needles in your pocket that the police could get poked with and get harmed or something like that um so uh searches there uh so if there’s a valid arrest taking place they can search the immediate area without a warrant at that point okay then there’s the loss of evidence search this is a situation where the police have to act quickly to preserve evidence before it’s lost um or being or or destroyed uh if the evidence is inside of the human body so a lot of people will swallow the evidence and let’s say it’s illegal drugs or something uh the government cannot take you to the hospital and induce vomiting or Force surgery upon you to find the evidence uh the court has ruled that is unconstitutional but blood tests are allowed so that’s a sort of variation on on that theme so if there’s a loss going to be loss of evidence or destruction of evidence uh right away then the police can go ahead and do a search at that moment without a warrant now there’s some more exceptions consent searches police can search if you give them consent all right permission has to be given freely and voluntarily um and voluntarily granted and the individual granting consent must have the authority to do so so the police cannot coer you cannot lie to you they cannot trick you into giving your consent so a police officer ever asked you can I search your car do you mind if I come inside and and look around inside your house you know they are asking because they don’t have a warrant and you can say no and if you’re not sure what to do what you say is is that a question is that a request or is that an order is that a request or an order and if they say well it’s a request then you should say no I always say no if the police ever ask me anything like that right oh you mind if we come and look around you mind if we look inside is it all right if we take a look the answer is no no you cannot where’s your warrant go get it not because you have anything to hide but because they could plant stuff there they could make stuff up you don’t know what’s going to happen right you better not let them do something like that if they ask but you know the natural thing is for innocent people to say yeah sure go ahead I got nothing to hide and then who knows what might happen uh there been many many cases over time where stuff happened even though you were innocent uh police uh drummed up some charge or found something to connect you with some crime that was bogus and you were convicted of it so be very careful all right to give your consent to police to search uh safety searches police May pat down a suspect believed to pose a danger in order to find or remove any

weapons or threatening objects so you haven’t been arrested but you know you’re a suspect and we can patch you down you know we’re not arresting you we just want to patch you down okay that’s allowed they have to have reason to believe though that you pose a threat to safety they can’t just Pat you for any reason they have to have again reasonable suspicion that you might pose a threat in order to pat you down uh and ins search you that sort of thing okay and then we have the Hot Pursuit exception which is the police can pursue fleeing suspects into areas where they would otherwise need a warrant so if the suspect is evading arrest they run into their house you can run into the house after them and arrest them if you’re the police you don’t need a warrant to go inside the house okay that’s sort of thing so the Hot Pursuit exception is allowed for police you know and think about it if you’re going to become a police officer you’re going to have to go to the training academy and you’re going to have to know all this you know it’s going you’re going to have to study it it’s going to be on the exam you know this is how you become a police officer you have to know this kind of law uh the Plain View Doctrine is um uh yeah somebody somebody’s asking what what was the fifth point we’ll move back real quickly that was the Hot Pursuit point right if if you’re pursuing a suspect into a house you can follow them into the house you don’t need the search one okay the Plain View Doctrine is controversial but holds that if police are um are are lawfully present in a location and uh they see something that’s openly visible then they can seize those articles without any additional authorization so if you’re pulled over in a car what’s the first thing the police do they shine their flashlight inside the car they want to see what they can see right through the windows and if they see drugs or they see guns or they see something going wrong that gives them Reasonable Suspicion prob cause to search the car um so hide your stuff right don’t leave anything in plane view because you never know when you’re going to get pulled over leave it outside of PL view in the trunk in the glove box that sort of stuff and so that way they can’t see anything all right so the Plain View Doctrine gives them the ability to search without a warrant if they see something that’s suspicious and then the final exception is the place searches in general the home is the most protected place and other places have less protection like Open Fields um of land even if it’s your own privately owned land if it’s an open field you have less expectation of privacy there um because people can see it it’s just an open field whether it’s overhead from an airplane or from the side of the road from a car with some binoculars right but inside your house people can’t right if you’re down in your basement there’s no windows it’s all blacked out um that’s like very private no one can see and okay so there’s no exception for Place searches there but prisoners in their cells there’s no there’s less expectation privacy there that’s why the cells are open there’s Windows there’s bars that you can see through um um so less expectation of privacy for prisoners um inspections for Customs border and Airport officials if you leave the country and you come back uh the Customs Department can absolutely search your luggage uh if they have some uh reason to do so um doesn’t even have to be

because of you if they have a tip that on your flight someone is smuggling a bunch of diamonds into the country illegally they can search everybody’s luggage on that flight okay so when you come back to the country if you get stopped and questioned and they ask you you know you know where were you what are you doing you have to take that seriously okay because they can search you right then and there you can’t say oh you have to have a warrant or I want to talk to my attorney and be very careful there right you have less expectation of privacy when you’re coming back into the country and then car windows uh you know those sort of things right um uh automobiles right are another uh area with low levels of protection and that’s because they are mobile right they can quickly leave the jurisdiction when when you know quickly leave the area when police stop them uh car windows allow people to look in as we mentioned uh before so there’s you have a lower expectation there in your car uh and then the government has a a pervasive interest in regulating cars right we we don’t just let anyone get a driver’s license we don’t just let anybody drive a car you can’t just drive as fast as you want or however you want uh because it’s very dangerous and so um there’s less expectation of privacy for your car and so routine traffic stops do not justify a search of your automobile but if the police have probable cause to believe that a crime has been committed then they may search your car and another example police may stop cars at checkpoints even if those checkpoints are merely informational if police set up a checkpoint to say you know uh it’s New Year’s Eve and we just want you to be careful tonight um you know and and then they stop every single car at the intersection just to make sure that you’re careful tonight because there’s a lot of people drink it out on the road we just want to let you know to be careful or something like that if they can see inside your car or they or look like you’re intoxicated then you know you can be pulled over so checkpoints are allowed and uh checkpoints um can allow a search without a warrant okay so there’s a whole bunch of Exceptions there uh to the warrant requirement the other area of the Fourth Amendment uh that is controversial has to do with how we enforce um the warrant requirement and we enforce that through the exclusionary rule so this is a judici a judicially created principle the exclusionary rule does not appear in the Constitution but courts have articulated this rule over time uh and it reduces the incentive that police might otherwise have for violating search and seizure rights and it’s this idea right that if IL if evidence is gathered illegally by the police then it may not be admitted into court so if the police just search your house without a warrant when you’re not there and they find a whole bunch of evidence that you’re committing a crime well that should be excluded from Court Court under the exclusionary role sure maybe you’re committing a bunch of crimes but your attorney is going to make an argument there was no warrant they can’t just go into your house and search all the houses and wait to find one that’s committing a crime um your conviction or your arrest will be thrown out your conviction will be overt um and so the

idea is that this gives police a strong incentive to follow the rules to follow the law to follow the Constitution and not do things improperly because if they do things improperly that evidence cannot be used in court to convict you all right so that’s an important concept the exclusionary rule as a Judicial check on again overzealous police officers um law enforcement officials until the 20th century though didn’t face the exclusionary rule and so this happened all the time where law enforcement would conduct illegal searches and seizures and the then that that evidence could be used in court um and you know it was a way for the government to uh find the bad guys without having any kind of probable cause at all um the exclusionary rule in this case weeks versus United States um was first articulated at the federal level in this case excluded evidence illegally obtained by federal agents after they entered uh this person’s house twice in one day to seize his property they just you know they they got a tip that he was doing something wrong but they didn’t have a warrant they just went into his house over and over again until they found some evidence and um seized it and tried to use it in court and the Supreme Court in 19 1914 said no you can’t and articulated the exclusionary Ru rule there um and then later on in 1949 the court again in wolf versus Colorado um talked about um you know excluding evidence on the on the uh state level uh however what was interesting was sometimes you commit a crime at the state level and the federal level you violated two laws and what would happen is the state prosecutors would turn uh that material over to the Federal government and even though the so the federal government could use it in court because they’re not the ones who had illegally seized it and that was a so-called silver platter doctrine that these other officials could turn it over to the other jurisdiction and they could use it it was kind of a loophole in the law but that was ultimately overturned in 1960 uh in the case of Elkins all right so Matt versus Ohio however is the foundational case in the exclusion area rule area and there’s a photograph there of doll remap who was arrested in Cleveland uh police conduct a warrantless search of her house they barged in on her um and she was arrested because what did they find they found obscene materials right she had uh some pornography in her house and so they arrested her even though they had no warrant to search her house for any reason whatsoever you know and um the court invoked the exclusionary rule um for state government officials uh and said that this is a deterrent Safeguard uh and without it the Fourth Amendment protections would be reduced so often times you see a lot of old if you watch old movies right um from before the time of map versus Ohio a lot of these criminal procedure decisions didn’t happen as I said Till the mid or late 20th century and so old black and white movies from the 1920s 30s 40s you see the police doing things like beating up the suspects breaking into people’s homes conducting illegal searches they were able to do that kind of stuff back then

and get away with it um and that kind of evidence wasn’t excluded in court today it must be excluded okay so um now just as we mentioned exceptions to the warrant requirement before there are also exceptions uh to the exclusionary rule and that’s because again the court has become more conservative over time and so when the liberal justices of the 1960s and70s left the bench and were replaced by more law and order-m minded conservative justices um some people thought the court would even overturn map versus Ohio and allow um you know illegally obtained evidence to be used in court but so far the court has not been able the conservatives on the court have not been able to do that uh over turn map versus Ohio but they have been able to scale back the exclusionary rule by creating exceptions to that rule so the colandra case from 1974 the justices said that the exclusionary rule did not apply to Grand Jury hearings that’s very interesting now a grand jury and we’ll talk more about that uh in the next uh lecture um is not a jury right for a trial court to decide innocence or guilt the grand jury has to do with the prosecutor goes to the grand jury asks for an indictment uh believing that someone’s committed a crime so they show the grand jurors a bunch of evidence and the grand jurors look at that evid and say yeah that person should be indicted which means yeah we should go ahead and prosecute that person in court with a trial with a jury to decide innocence or guilt so in kandra the justices said that the exclusionary rule did not apply to Grand Jury hearings that means that illegally obtained evidence can be presented to the grand jury so prosecutors can say yeah we broke into this guy’s house house we illegally obtain the evidence uh but look the evidence shows the guy’s a criminal and the grand jury can say yeah let’s issue an indictment let’s go ahead and prosecute them now the evidence can’t be used at the trial but it can be used to gain the indictment that’s quite an exception quite an exception okay um and that’s again a new relatively new development development in the law by the conservative justices US versus Leon is another very controversial part of exceptions to the exclusionary Ru rule this is a 1984 case where the Court ruled that evidence seized by the police acting in quote unquote good faith good faith uh with a warrant is admissible even if the judge aired in issuing the warrant in the first place so think about that the judge issues the warrant to the um prosecutor to the police right we want to go search somebody’s house the judge says let me see your evidence and the police say we don’t really have much evidence we you know we have this rumor whatever just say well yeah that’s probably good enough if you if you say he’s guilty he probably is here’s the warrant and it didn’t rise to the level of probable cause and so they go to your house they find a bunch of stuff they arrest you in court you can you could say hey the judge didn’t have probable cause to issue that warrant and after Leon in 1984 that doesn’t matter anymore

even if the judge didn’t have probable cause and issued that warrant improperly if they find evidence against you that evidence can be used court that is a major exception to the exclusionary rule and a major victory for conservatives and police officers and prosecutors in this country another exception in the same year in US versus Nick The Court established the inevitable Discovery exception evidence discovered as a result of an illegal search can it should say can still be introduced in court if it can be shown that the evidence would have been found anyway think about that right so the police break into your house they conduct an illegal search right and they find a bunch of evidence and they have no warrant but let’s say uh in court they can show that well we could have gotten a warrant we could have gone we could have gone to the judge and and gotten a warrant we just didn’t bother to do it because we had plenty of evidence to get probable cause to get a warrant we just didn’t do it and so you know we would have done if we if we had done it the judge would have granted the warrant and then we would have found all the evidence and the guy’s guilty and the Supreme Court has said okay that’s allowed so think about that that’s a huge exception that allows the police to not have to get the warrant if they know they can get the warrant they can just go ahead and conduct the search a major victory again for the police for conservatives and prosecutors another exception Illinois versus croll the court allowed evidence seized by police who conducted a search pursuant to an unconstitutional statute so if the state legislature passes a law that allow police to do certain kinds of es even though that’s unconstitutional in other words the Supreme Court finds later that that law is unconstitutional but before they do that police are acting on this unconstitutional statute and seizing a bunch of evidence well that evidence can be used in court then because it hadn’t been overturned yet by the Supreme Court so another big exception to the exclusionary rule um Hudson versus Michigan this is a more recent one 2006 the court considered the traditional knock and rule this idea that the police come to your door uh they have a warrant right to search your house they knock on the door they can’t just barge right in they have to wait a reasonable amount of time for the occupant to respond to the knock before entering a home right that’s what the knocked and announce rule is that’s what it has always been had always been until 2006 this idea that you knock knock on the door wait for an answer you know reasonable amount of time you know at least probably what how long 10 15 20 30 seconds for someone to answer the door if they don’t answer the door then you can go ahead and enter because you have the warrant that’s the knock and announce rule but in Hudson the Court ruled 5 to4 with the new conservative justices on the court Roberts and Alo and the majority that evidence found after entry with a valid search warrant need not be excluded if police violate the knock and announce rule so if they have a warrant and they go to your front

door they don’t have to knock on the door they can come right in and seize the evidence and can be admitted in court a major change in the law the knock and announce rule um allowed some sort of privacy some sort of time for you to get to the door right no no longer so another big exception big victory for conservatives prosecutors and police officers all right so the debate over the Fourth Amendment and the exclusionary rule illustrates the highly politicized nature of judicial decision-making generally and of criminal law specifically Accord search and seizure standards have evolved from the conservative physical penetration rule that we talked about which is no longer applicable to the liberal except expectation of privacy standard this idea that people should have an there is an expectation of privacy now that uh should require warrants and probable cause but opponents of the exclusionary rule argue that letting a guilty person go free is too great a price for society to pay just because the police officer violates search and seizure guidelines so just because they didn’t follow proper procedures with regard to warrants and probable causes and so forth that doesn’t mean that evidence should be excluded from trial and guilty people should go free that that doesn’t make any sense um at least that’s been the argument of conservatives and they have conservative majorities on the Supreme Court have sustained those arguments and so that’s why we have all of these exceptions supporters fear that the if the exclusionary rule is eliminated which we’re on the road to doing with all of these exceptions police will have no incentive to respect the law and will return back to a time before the exclusionary rule right when police could pretty much get away with anything as long as they find evidence of guilt later they can do anything beforehand a 1983 study uh it’s a bit dated but uh the data I’ve seen recently still proves Bears this out uh because the court talked about this in Leon in 1983 that between 1 and 2% of all felony arrests in this country are lost and in stage in the arrest disposition process including trials and appeals because of the exclusionary rule the rate of loss arrest is somewhat higher in drug and other possessory offenses but much lower in violent crimes so this idea is out of for every 100 felony cases meaning serious criminal cases not misdemeanors like traffic stops but serious felony cases involving violence um that that sort of stuff okay in F in felony cases um one out of one to two out of every 100 cases are overturned because the police didn’t follow proper procedures well that’s not a huge percentage but it does mean that one or two people who otherwise would be guilty of committing a crime do go free because police don’t follow proper procedures and you know the more exceptions are allowed uh to to these uh um requirements of warrants and exclusionary rules then uh the more

likely these people won’t be released right and we won’t have actual criminals being released by courts back into society and so that’s why America has has chosen basically in the last four decades or so um to move in that direction any more conservative Direction because they don’t want uh these folks back on the streets because of liberal decisions all right so um we have a couple minutes here um to take some uh questions um if anyone wants to weigh on the fourth amendment we can certainly talk about that um or we can go go back to the First Amendment if there’s any lingering questions you have there before we turn to the Fifth Amendment and the Fifth Amendment is another criminal procedure Amendment largely um that we’re going to spend a fair amount of time on um and involves um not only CRI criminal procedure but also the taking of private property by the government and you might have heard about that famous case the kilo case so we want to definitely spend time on that here in a minute all right so Mike asked what about the exigent circumstances what do what do we mean by ex what do you mean by exigent circumstances exactly oh and meanwhile I me there was someone right who asked about why why the exclusion error rule does not apply to grand juries and we were talking about that before um the exclusionary rule doesn’t apply to grand juries because the court it doesn’t apply to grand juries um you know it’s it’s an important thing to understand that the Supreme Court um has made itself the final Arbiter of constitutional adjudication in this country um you know we supposed to have three separate branches of government right the Executive Branch the legislative branch and the judicial branch but the court over time has become more and more activist in terms of getting involved in uh controversial cases controversial areas and and trying to solve the issue for the country and so that’s what we have uh with regard to the exclusionary rule not applying to grand juries basically um judges on the Supreme Court have said that it grand juries can consider illegally obtained evidence uh they can consider rumor they can consider third party hearsay so prosecutors can go before the grand jury and say well you know I hear a lot of rumor a lot of speculation um indeed we obtained this evidence illegally that that confirms some of these rumors and the grand Juran say wow that’s that’s impressive I think you should prosecute those guys let’s hand down an indictment and so um that’s the law that’s been the state of the law for quite some time in this country so grand juries have a much much more leeway in terms of what they can consider um in terms of issuing indictments or not issuing indictments uh compared to regular juries for criminal trials in terms of innocence and guilt those juries cannot consider

rumor or hearsay or illegally obtained evidence accept in those exceptions that we mentioned okay all right so um maybe we should move on here a little bit to um the Fifth Amendment because it builds on what we’ve been talking about in terms of criminal procedure um criminal procedure uh involves a whole bunch of different areas uh the fourth amendment being part of it but the Fifth Amendment contains also a number of criminal procedure provisions and so do the sixth amendment as well you can see there in the word word cloud we’re going to talk about jury we’ll talk about Double Jeopardy which is always a fascinating concept that a lot of people uh are are have a lot of questions about unsure about it self-incrimination we’ll talk about the Miranda Rights very famous so while the fourth amendment is certainly important with regard to um probable cause and search and seizure and the exclusionary rule the Fifth Amendment uh involves a whole number of Provisions that that tend to be a little bit more uh famous here’s a picture of of the grand jury you know and and and a grand jury can consist of a lot lot of people it doesn’t have you know we think of criminal trials we think of criminal juries being a dozen 12 people on the on the criminal jury um but the grand jury can be two dozen people and um the grand jury and you can see there of course it’s all men this is an old one from 1913 all men on the grand jury and they don’t just sit in courtrooms and hear evidence and rumor and speculation and hear say from the prosecutor they can go out with the prosecutor to the site of the alleged crime or whatever and do their own investigating so Grand jurors are quite uh powerful uh in that sense so let’s talk a little bit more about the grand jury as I said it can it can be anywhere from 12 to 23 jurors and they’re empowered to evaluate and investigate crimes within a Juris jurisdiction the fifth amendment guarantees a grand jury review to anyone accused in federal court of a felony and as I said before these are serious crimes right felonies are serious crimes misdemeanors are minor crimes like traffic stops and those sort of things okay so um the idea here is that the uh grand jury review the the protections of a grand jury provided for in the Fifth Amendment are are um a check again against overzealous prosecutors who um would otherwise want to prosecute you without any reason to do so um here you have to have the grand jurors agree that there’s a reason to prosecute and that is what they do when they issue an indictment all that does is give the prosecutor the go-ahead to go ahead and prosecute prosecute you unlike trials grand juries have much greater leeway in terms of what they can consider as I mentioned before rumor hearsay speculation and yes illegally obtained evidence um based on recent Supreme Court law the proceedings are run by the prosecution uh witness testimony can be considered but there’s no defense attorney there so it’s a kind of closed proceeding where the prosecutor and the grand jurors get together there really there there’s really no opposition there so they’re

they’re you know the prosecutor the Grand jurs could get together and have a whole long discussion about whether to indict you and you don’t even know it you’re you’re not there your attorney’s not there you have no idea they’re doing it all on their own it’s a closed shop in that sense very different from the actual criminal trial all right so generally the uh at least 12 of the grand jurs must vote for an indictment for the case to move forward uh and the accused to be charged so it doesn’t have to be all the grand jurs but it should be a majority of the grand jurs so that makes it even easier so you figure they’re considering rumor and hearsay and speculation and illegally obtained evidence and they only have to get a majority uh in order for the uh prosecution to continue so it’s pretty easy for federal prosecutors to get indictments from grand juries you know you imagine seeing a scar headline right uh in the press that says you know so and so indicted and you think oh my God somebody was indicted that sounds horrible but what you realize now is that someone gets indicted by the federal government from a grand jury what you realize is well gee anyone can get indicted by a Federal grand jury because they can consider rumor and hearsay and illegally obtain evidence and so indictments don’t mean anything all the indictment is is an accusation of guilt right an accusation made by the prosecutor and the grand jury that’s all it is it doesn’t mean anything else but I don’t think a lot of people know that and so if you see a headline that says so and so is indicted you’ll think oh my goodness it’s the end of the world world but it isn’t that big of a deal indictments returned by Grand Jury panels whose selection has been tainted by racial or sexual discrimination are dismissed and so um if it can be shown that grand jurors have excluded systematically racial minorities or women from the jury pool the grand jury pool not being allowed to be grand jurors then any indictments that they issue uh can be thrown out so um you can’t just pick anyone to be on the grand jury uh it does have to be a cross-section of the community broadly speaking just like a regular criminal trial jury all right um critics of the grand jury system argue that it’s not really a check on prosecutors because they have little restriction on what they can say and what they can provide to jurors so those makes indictments highly probable and more than more formality than anything else as a result the practice of grand juries has been diminishing in Most states and in the federal courts with more than half of the states having abandoned grand juries altogether it’s up to the states themselves to decide whether whether or not to have grand juries the Constitution the fifth amendment’s guaranteed for grand jury only applies to the federal government um so state governments can choose for themselves and over time state governments have decided we don’t really want grand juries anymore because it’s kind of a waste of time it’s expensive for taxpayers to uh you know to constitute the grand jury and and do all of this work let the prosecutors decide to indict on their own or maybe the prosecutor just goes before a local judge and gets the indictment make it a

lot easier that way okay because they’re not really a check to begin with the grand jurs so the Supreme Court ruled in the famous case of herado versus California 1884 that the grand jury protections are not required in state proceedings making this provision one of the few guarantees of the Bill of Rights that only applies to the federal government as I mentioned before um so we may think of freedom of speech freedom of religion freedom of the press all of those first amendment protections those all are held to the federal government and the states but the Supreme Court said the grand jury protection is not an essential part of due process and so therefore is not something that states have to be required to do so let’s take a look at some of these uh Provisions Beyond grand jury in the Fifth Amendment Double Jeopardy is one that people think about all the time and students are always asking about the OJ case you know isn’t that double jeopardy because he was found innocent in the criminal trial or not guilty and then uh he had to go through another trial a Civil Trial um brought bought by the Goldman family and he was found liable for violating the Goldman family um uh this is uh Ronald Goldman one of the victims of the attack the Civil Court said that OJ violated his civil rights so anytime you uh commit a murder you could be violating someone’s federal civil rights and you could be sued in federal court uh but that’s not a criminal uh case OJ was tried criminally at the state level the civil case takes place at the federal level uh and it’s um a civil case so it’s for monetary damages so they were suing OJ for money that’s what put OJ in such financial difficulties and why he had to really ramp up his memorabilia sales and that of course led to ultimately his arrest uh in Vegas and his current imprisonment for that so um Double Jeopardy uh in the Fifth Amendment um of the Fifth Amendment is only prohibits what it only prohibits a second prosecution after an acquittal the same offense so if you’re found innocent or not guilty uh as OJ was in the criminal court um then the state can’t come back and try you again all right that would be double jeopardy once you’re found not guilty that’s the end of that okay so that’s what Double Jeopardy prohibits it also prohibits a second prosecution after a conviction of the same offense so um if you’re convicted for a crime um and you serve out your sentence they can’t go ahead and try you again for the same crime to try to get you in prison again so it it certainly uh prevents that and it also prohibits a punishment more than once for the same crime so um you can only be punished once uh for um for the crime that you committed it seems simple and clear but again there are complications and I mentioned uh the complication uh being that a single criminal act May violate multiple statutes and that can allow for multiple prosecutions you might have violated state law but you might have violated

federal law too and so if you violate a state criminal law and you’re found not guilty there but you’ve also violated a federal criminal law you could be found guilty there that doesn’t violate Double Jeopardy because those are two separate jurisdictions the state and the federal two separate laws that you have violated even though they may prohibit the same thing and that’s part of the American Federalist system right we have a federal government and we have a state government and those state governments have chosen to delegate powers to local governments and so you have County governments City governments and state governments and then also the federal government and so if you’ve uh violated an offense at the state level let’s say a state Drug law you can be prosecuted um and you can also be prosecuted at the federal level for violating a federal drug law okay that does not violate double Jey Provisions um M trials generally allow for another trial so this is another thing that confuses people if during the trial the judge doesn’t follow proper procedure or the jurors don’t follow proper procedure and there’s some sort of mistrial right the trial has to stop um you can be tried over again and if this during the second trial there are improper procedures the trial has to stop you can be tried again you can be tried again and again and again maybe the trial even uh concludes and the jurors come down with a verdict and you’re found um not guilty and and or you’re found guilty and you appeal to the uh court of appeals and say that improper procedures were followed the court of appeals can say that’s right uh improper procedures were followed and so your conviction is thrown out the state can choose to try you again and so the state can keep trying you over and over and over again if they want if improper procedures are followed so we want the procedures to be followed um the first time so that we don’t have this problem of continuing to retry people that doesn’t violate double Jeopardy so uh double jeopardy is only violated when the trial is conducted properly not if there is a mistrial first convictions that are reversed on appeal allow for another trial and that’s part of this whole idea that I just mentioned that you can be tried again if there’s some reason for reversing your conviction on the uh at the court of appeals um separate sovereignty prosecutions for the same offense are allowed that’s what we were talking about uh before an equital in a criminal case does not provide immunity to civil action that’s the OJ uh example there so um you can be uh perhaps liable in a civil case for a criminal act that you do uh roughly 90% of criminal cases are plea bargain now think about that nine out of 10 criminal cases do not go to trial that means that the accused cuts a deal with the prosecutor right the prosecutor says look we won’t take you to trial um and what we’ll do is we’ll throw out some of the charges and instead of 20 years in prison we’ll just give you three years in prison but you

have to plead guilty you have to say that you’re guilty um and if you do that then we’ll reduce the charges and we’ll drop your sentence and so you say okay I’ll I’ll plea bargain that and and that counts as a conviction and so even though you plea bargain it’s it counts the same on your record as if you went to trial and the jury or the judge found you guilty Double Jeopardy rules apply just as they would for conviction by trial court all right because it counts the same way whether it’s plea bargain or not so it’s not just the double Jeopardy counts for trials Double Jeopardy counts for plea Bargains as well and that’s the vast majority of criminal cases okay let’s talk about the self-incrimination provision this is the whole idea that you have the right to remain silent right and we think about Miranda versus Arizona the famous case from 1966 where the Supreme Court ruled very narrowly 5 to4 a liberal Supreme Court ruled right that if you confess to a crime that’s not admissible in evidence in a court of law unless you are verbally apprised of your constitutional rights before you give the confession right and so what that means is the court has to say to someone who was arrested right as soon as someone uh is is deemed a suspect by the police right and arrested we know the famous Miranda rights um and you know we hear them on TV we hear them in the movies all the time the police have to verbally tell you that you have the right to remain silent that’s self-incrimination meaning you can’t incriminate yourself they can’t force you to answer the questions they can’t force you to admit whether you’re guilty or not okay um you don’t have to say anything at that point so you do have the right to remain silent uh once um you’re arrested and if the police forget to tell you that you have the right to remain silent and you start confessing to the crime those crime those confessions should not be allowed in court right because you didn’t receive your Miranda Rights and you have the right to an attorney and that sort of stuff so all of these rights have to be given to you and if they’re not given to you you could uh potentially um have a claim to get your conviction thrown out later all right so this is called mirandizing the police know about this they learn about this they have to mirandize suspects uh at the point where they are um suspects right so that potentially anything they say could be used in court they don’t mirandize suspects and people start talking that stuff is inadmissible so once you get mirandized then the police can pretty much ask you anything um and if you want you can answer questions but those things can be on the record and use against you uh the Supreme this is a very controversial decision the Miranda decision and conservatives didn’t like it for years they wanted to overturn it but in Dickerson versus the United States in 2000 a conservative Supreme Court uh actually upheld it and said look the Miranda rights are so firmly ingrained in the law they’ve been around so long that we have to um allow it okay uh keep it in place because Americans have an expectation um that these will be read to them and they want to know uh

at the point with which they’re talking to police what can be used and what cannot be used okay um yeah we’ll get to questions here in a second I just want to wrap up here with the uh couple more slides here on due process um the administration of justice what is due process it’s the administration of justice the fifth amendment guarantees due process no person can be denied life liberty or property without due process of law this is a very vague concept you know what do we mean well basically what we mean is that you can’t be denied life unless you get due process uh meaning the government can’t kill you they can’t just take your life for no reason they have to give you due process first and we call this procedural due process they’re going to get a procedure and we know what that is right you’re going to get an attorney you’re going to get a jury of your peers you’re going to get a trial right you’re going to have the right to confront your accusers and so forth to question Witnesses and that sort of stuff okay so that’s procedural due process um the Constitution guarantees that every um person who’s accused of a crime gets that procedural due process um the government can’t take your life without it um they also can’t take your Liberty without it right to put you in jail to restrain your freedom to move and so forth um without uh procedural due process and life liberty and property they can’t take your property right without due process first that’s what the Fifth Amendment says the 14th Amendment says the same thing for state and local governments now procedural due process is a fairly simple concept right that you’re going to get these procedures whenever you’re um accused of a crime but um there ‘s also this very controversial area of of due process which is the substantive aspect of due process this idea that um there are certain areas um you know when we think of life liberty and property specifically with regard to Liberty certain Liberties certain freedoms that you have that are absolute that or more absolute than others uh that you can’t be denied even if you go through a pro a process a procedural process um and we might think of civil rights for example as as one example of that and it’s a very difficult concept but the most important concept with regard to substan of due processes the right to privacy now we mentioned it before in terms of expectation to privacy in the home with regard uh to warrantless searches and the like and that kind of expectation to privacy in Olstead versus United States is something that the court picked up on uh in in the TW late 20th century liberal justices picked up on and said you know the Constitution creates a whole bunch of rights that seem to give rise to a general right to privacy go ahead and do a search the word privacy does not appear in the Constitution and so it is uh something that the courts have said in the famous case of Griswald versus Connecticut from 1965 the majority said these uh the right to privacy emanates from the specific guarantees of the Bill of Rights like um search and seizure Provisions right you have a reasonable expect ation of privacy of your person right the government can’t pump your stomach for

evidence the government can’t look inside your pockets right unless they have probable cost uh and the home another zone of privacy certain expectation in the home and so Griswald versus Connecticut was a case in 1965 about the use of contraception um the state of Connecticut criminalized the use of Contra contraception and Planned Parenthood was providing counseling um marital counseling for um you know married couples uh who maybe didn’t want get pregnant right away and so they were offering uh advice about using condoms and other forms of contraception but this violated Connecticut Law and so uh are you going to prosecute the worker at Planned Parenthood and the married couple uh for uh engaging in this use and discussion of contraception and the Supreme Court said um that that there is a right to privacy that includes the marital bedroom that no government can criminalize okay and so that really begins this very controversial area of the right to privacy which is all based on substantive due process this idea of Liberties freedoms rights that you have that even procedures can’t take away um that leads to Row versus Wade so with with griswell then we get to Row versus Wade so if contraception is allowed for marital couples what about abortion right and the Supreme Court says in Row versus Wade that there’s a private relationship between a woman and her doctor that the state cannot infringe the state cannot criminalize abortion at least in the uh first uh trimester of pregnancy it’s an absolute right of privacy between the woman and a doctor and only in certain circumstances in the second trimester and then in the third trimester uh when the fetus becomes viable then the state has an interest in protecting the life or the potential life of the fetus at that point because it could live outside the womb and then um the state could could ban abortion in the third trimester if it wanted to so Row versus Wade Begins the uh abortion debate that of course continues in America but it’s important to understand that the right to privacy includes the right to an abortion and that comes from Griswald versus Connecticut where we have the right to uh privacy in the marital bedroom okay the most recent example of this right to privacy substant due process is Lawrence versus Texas and this is the case where the Supreme Court struck down criminal sodomy laws um that that the Supreme Court said 5 to four with just Justice Kennedy the Swing Vote calling saying that same-sex couples had a protected liberty interest to engage in private intimate conduct not unlike a married couple right so extending that right to privacy or that liberty interest to have a private relationship intimate relationship with another person ex and and that no no procedure can take away no criminal law can take away Lawrence versus Texas a major gay rights Victory uh for um for that movement in 2003 at the Supreme Court now the final area of course is the takings clause and you’ve

heard a lot about this you know can the government take your private property for uh for you know public use and the answer is yes they can but the and this is the power of imminent domain imminent domain is inherent power that governments have to take private property if the government needs to put up a military base they can take your house if it’s in the spot that the military base needs to go on um they can take your house um under the power of imminent domain what the Constitution does is it checks that government power it says that the government can only do it if it’s for public use so they can’t you know just take it for any reason there has to be a public use to that property and of course you have to get just compensation which generally means fair market value so um the just compensation provision isn’t that controversial in General Court stays long as the people are offered fair market value by the government and the government usually offers more than fair market value just to make make sure that there there’s no issue there with money money if they need property um so that’s not controversial it’s the public use part that tends to be controversial um very controversial even to this day and so you can see in the three uh leading cases here Burman versus Parker from 1954 the Hawaii case from 84 and the kilo case from 2005 in each instance the the Supreme Court allowed the government to take property in Burman they said they could do it for aesthetic and beautification reasons so if there was a blighted area of town a kind of burned out rundown area of town boarded up houses the government come in and take all that property in order to beautify the area and make it look pretty again however that maybe they want to put in flowers and Parks or maybe whatever okay so um that was allow that was a pretty expansive use of eminent domain uh and and for a liberal use right this Aesthetics and beautification in the Hawaii case they uh the court upheld a state plan to redistribute Land by forcing large land owners to sell their the people who leased that land and that was interesting uh because um there were a few land owners in Hawaii that owned all the land and everybody uh that lived in Hawaii was renting and the rents were extremely high and so the court said they could do that land redistribution was allowed and in kilo the most famous case a recent case was um that private homes uh could be taken um to put up a Redevelopment plan a fiser research facility a hotel a conference center museum restaurants and shops and these private houses these women had Liv lived in these houses for hundred years with their families the houses were beautiful they were beautiful uh waterfront properties but the government wanted to take them just give fair market value and put in this business district and the Supreme Court allowed it and said that that constitutes of public use business Redevelopment constitutes public use and your house can be taken all right so we need to wrap it up I know we’re a little bit late and we have some a few questions so I’ll go ahead and answer some questions now if there’s anybody uh who wants to weigh in on some of this there’s a whole lot um whole lot to talk about with this stuff um there was a question about supposing a

criminal confesses to a crime and the police did not mirandize him but he already knows his Miranda rights because he watches cop movies no no no no no the police have to verbally give you those Miranda rights it’s not that we can assume that you know them no we can’t assume that um the police have to verbally say that to you and so anything that you say before you’re mirandized cannot be used in court so that’s why police are very quick to read you Miranda rights whenever they think you’re a suspect so they can get that out of the way and then they can um you know record what you’re saying take down what you’re saying and use it later in court all right so I’m sorry we’ve run out of time I know we uh we could go on all night but these PowerPoint slides are available on my website I I know Kate say she was going to make them available to your teachers as well I have a lot of extra slides at the end of each one of these presentations that go in depth on a lot of the cases you can review them on your own if you want to learn about more about any of the particular areas of the law I provided you with those slides um I certainly appreciate you uh tuning in it’s been a pleasure talking to you and and um you know I’m a I’m a professor at Northern Illinois University outside of Chicago and if you come to college and you take constitutional law classes uh as an undergraduate student this is what you do we go over these areas of the law civil rights civil liberties and um cover the cases and then you can decide gee do I really want to go to law school uh by taking a few undergraduate political science constitutional law classes all right so uh I appreciate uh you tuning in and uh we’ll see you next time e for