civil liberties
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CIVIL LIBERTIES. FIRST AMENDMENT. - PowerPoint PPT PresentationTRANSCRIPT
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CIVIL LIBERTIESCIVIL LIBERTIES
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FIRST AMENDMENTFIRST AMENDMENT
Congress shall make no law Congress shall make no law respecting the respecting the establishment of establishment of religion religion or prohibiting the or prohibiting the free free exercise exercise thereof; or abridging the thereof; or abridging the freedom of speechfreedom of speech,, or the or the presspress; or ; or the right of the people the right of the people peaceably to peaceably to assembleassemble, and to , and to petition the petition the government government for redress of for redress of grievances.grievances.
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First Amendment questionsFirst Amendment questions
What constitutes the What constitutes the establishment establishment of of religion? What is the religion? What is the wall of separation wall of separation ??
What is the abridgement of What is the abridgement of free free exercise exercise ??
How far does How far does freedom of speech freedom of speech go? Is go? Is symbolic speech symbolic speech (non-spoken) also (non-spoken) also protected?protected?
Is Is obscenityobscenity protected ? What is protected ? What is clear clear and present dangerand present danger ? ?
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First Amendment First Amendment questions…questions…
Free press Free press and the right to knowand the right to know
- what is - what is prior restraint prior restraint ??
- is - is libel libel protected?protected?
- is the - is the electronic media electronic media covered?covered?
What is What is peaceable assembly peaceable assembly ?? How do you How do you petition the government petition the government
??
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First Amendment cases: First Amendment cases: ReligionReligion
Establishment ClauseEstablishment Clause Everson v. Board of Education Everson v. Board of Education (1947)(1947) prohibits laws that benefit religion - prohibits laws that benefit religion -
must be a “wall of separation”must be a “wall of separation”* * incorporates Establishment Clauseincorporates Establishment Clause
Engel v. Vitale Engel v. Vitale (1962)(1962)school prayerschool prayer
Abington School District v. Schemp Abington School District v. Schemp (1963)(1963)no bible reading – was a religious exercise by no bible reading – was a religious exercise by the statethe state
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Establishment ClauseEstablishment Clause
Lemon v. Kurtzman Lemon v. Kurtzman (1971)(1971)*Lemon Test ( 3 part precedent)*Lemon Test ( 3 part precedent)1. policy must be secular1. policy must be secular2. primary effect neither advances nor inhibits2. primary effect neither advances nor inhibits
religionreligion3. must avoid “excessive entanglement” of3. must avoid “excessive entanglement” of
government & religiongovernment & religion Wallace v. JaffreeWallace v. Jaffree (1985) (1985)
moment of silence- intent of the law was moment of silence- intent of the law was to restore prayer in schoolto restore prayer in school
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Establishment ClauseEstablishment Clause Lynch v. Donnelly ( 1984)Lynch v. Donnelly ( 1984)
religious displays ok if contain some secularreligious displays ok if contain some secular
symbols (symbols (Rehnquist Ct & Ten Commandments Rehnquist Ct & Ten Commandments 20052005: :
KY case finds display in courtroom lacks secular KY case finds display in courtroom lacks secular
purpose purpose
TX case allowed outdoor display as a balance ofTX case allowed outdoor display as a balance of
freedom and tradition)freedom and tradition) Lee v. Weisman Lee v. Weisman (1992)(1992)
graduation prayers are a graduation prayers are a coercioncoercion of religion of religion Santa Fe School District v. Doe Santa Fe School District v. Doe (2000)(2000)
prayer at a high school football game is prayer at a high school football game is coercioncoercion
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Establishment ClauseEstablishment Clause
Rehnquist Court Rehnquist Court
- moving away from the “wall of - moving away from the “wall of separation” between religion & gov’tseparation” between religion & gov’t
- opinions are now allowing the - opinions are now allowing the encouragementencouragement of religion but not of religion but not the the coercioncoercion or the or the endorsementendorsement of of itit
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Free ExerciseFree Exercise
Minersville v. Gobitis Minersville v. Gobitis (1940) (1940) overturned byoverturned by
W. Va. V. BarnetteW. Va. V. Barnette (1943) (1943)
flag salute – cannot be forced to salute flag salute – cannot be forced to salute
(also applied to pledge of allegiance (also applied to pledge of allegiance currentlycurrently
in the in the Newdow Newdow case)case)
Church of Lukimi Babalau Aye v. Hialeah Church of Lukimi Babalau Aye v. Hialeah ((1993) 1993) religious animal sacrifice & religious animal sacrifice & substantive due processsubstantive due process
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Freedom of the PressFreedom of the Press Near v. Minnesota Near v. Minnesota (1931)(1931)
no prior restraintno prior restraint * Incorporates free press to all states* Incorporates free press to all states New York Times v. U.S. New York Times v. U.S. (1971)(1971)
““Pentagon Papers” – national securityPentagon Papers” – national securityv. public’s right to knowv. public’s right to know
Hazelwood v. Kuhlmeier Hazelwood v. Kuhlmeier (1988)(1988)prior restraint of student press byprior restraint of student press by
school administration allowed school administration allowed
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Freedom of SpeechFreedom of Speech
Non-protected SpeechNon-protected Speech Schenck v. U.S. Schenck v. U.S. (1919)(1919)
speech that presents a “clear & presentspeech that presents a “clear & present
danger”danger” Gitlow v. New York Gitlow v. New York (1925)(1925)
subversive speechsubversive speech is not protected from is not protected from
government regulationgovernment regulation
* * Incorporates freedom of speech to the statesIncorporates freedom of speech to the states
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Freedoms of SpeechFreedoms of Speech
Non-protected SpeechNon-protected Speech
Dennis v. U.SDennis v. U.S. . (1951)(1951)Smith Act and Smith Act and seditious speechseditious speech to to
overthrowoverthrow governmentgovernment Brandenburg v. Ohio Brandenburg v. Ohio (1969)(1969)
speech must be directly related to speech must be directly related to imminentimminent
lawless action to be suppressed not justlawless action to be suppressed not just advocacy of action (KKK case)advocacy of action (KKK case)
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Freedom of SpeechFreedom of SpeechNon-protected SpeechNon-protected Speech
Miller v. CA. Miller v. CA. (1973) (1973) test for test for obscenityobscenity in speech: in speech:
If the community standards find that:If the community standards find that:
1.1. the average person would find the speech or the average person would find the speech or work appeals only to prurient interestswork appeals only to prurient interests
2.2. the work is patently offensivethe work is patently offensive
33. the work taken as a whole lacks serious . the work taken as a whole lacks serious literary, artistic, political, or scientific valueliterary, artistic, political, or scientific value
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Freedom of SpeechFreedom of Speech
Non-protected SpeechNon-protected Speech Bethel v. Fraser Bethel v. Fraser (1986)(1986)
first amendment first amendment does notdoes not prevent prevent
school officials from banning lewdschool officials from banning lewd
speech that would undermine thespeech that would undermine the
school’s basic educational missionschool’s basic educational mission
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Freedom of SpeechFreedom of Speech
Protected SpeechProtected Speech includes written, spoken, symbolic speech & includes written, spoken, symbolic speech &
assembly and speech that you hateassembly and speech that you hate Buckley v. Valeo Buckley v. Valeo (1976)(1976)
campaign contributions to own campaign campaign contributions to own campaign areare
free speechfree speech Reno v. ACLU Reno v. ACLU (1997)(1997)
struck down internet law which banned struck down internet law which banned childchild
access to pornography as a violation of access to pornography as a violation of adult’sadult’s
first amendment rightsfirst amendment rights
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Freedom of SpeechFreedom of Speech
Protected Symbolic SpeechProtected Symbolic Speech R.A.V. v. City of St. Paul R.A.V. v. City of St. Paul (1992)(1992)
cross burning is not one of thecross burning is not one of the categories of speech that can be categories of speech that can be
limitedlimited Tinker v. Des Moines Tinker v. Des Moines (1969)(1969)
student silent protest with armbands student silent protest with armbands isis
not not disruptive to the educationaldisruptive to the educational processprocess
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Freedom of SpeechFreedom of Speech
Protected Symbolic SpeechProtected Symbolic Speech
Texas v. Johnson Texas v. Johnson (1989) (1989)
flag burning is protected under thisflag burning is protected under this
amendment (amendment (Court ruled on it twiceCourt ruled on it twice)) Schenck v. Pro Choice Network Schenck v. Pro Choice Network (1997)(1997)
floating buffer zones around abortion floating buffer zones around abortion clinicsclinics
offend free speechoffend free speech
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Second AmendmentSecond Amendment
A well regulated militia being A well regulated militia being necessary to the security of a free necessary to the security of a free state, the right of the people to state, the right of the people to keep keep and bear armsand bear arms shall not be infringed. shall not be infringed.
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Second AmendmentSecond Amendment
U.S. v. Miller U.S. v. Miller (1939)(1939)
registration of sawed-off shotguns does notregistration of sawed-off shotguns does not
violate the Second Amendmentviolate the Second Amendment Printz v. U.S. Printz v. U.S. (1997)(1997)
federal government (via Brady Bill) federal government (via Brady Bill)
cannot compel states to administer acannot compel states to administer a
federal regulatory program federal regulatory program
(background check) – (background check) – really a really a federalismfederalism
issueissue
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Third AmendmentThird Amendment
No soldier shall, in time of peace, be No soldier shall, in time of peace, be quartered in any house without the quartered in any house without the consent of the owner; nor in time of consent of the owner; nor in time of war, but in a manner to be prescribed war, but in a manner to be prescribed by law.by law.
* * Never been the subject of a Supreme Never been the subject of a Supreme Court decision except in support of the Court decision except in support of the 99thth Amendment in Griswold v. Conn. Amendment in Griswold v. Conn.
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Fourth AmendmentFourth Amendment
The right of the people to be secure in The right of the people to be secure in their persons, houses, papers, and their persons, houses, papers, and effectseffects againstagainst unreasonable searches unreasonable searches andand seizures, seizures, shall not be violated; shall not be violated; and noand no warrantswarrants shall issue but uponshall issue but upon probable cause, probable cause, supported by oath and supported by oath and affirmation,affirmation, andand particularly particularly describing describing thethe place place to beto be searched, searched, and theand the persons persons oror things things to beto be seized.seized.
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Fourth Amendment Fourth Amendment QuestionsQuestions
What is What is probable cause probable cause ?? When is a When is a warrantless search warrantless search
allowed ?allowed ? What is a What is a reasonable search reasonable search ?? What the What the exclusionary ruleexclusionary rule??
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Fourth AmendmentFourth Amendment
Probable Cause Probable Cause is where the facts & is where the facts & circumstances within an officer’s circumstances within an officer’s knowledge , and of which they have knowledge , and of which they have reasonably trustworthy information, are reasonably trustworthy information, are sufficient in themselves to warrant a man sufficient in themselves to warrant a man of reasonable caution in the belief that an of reasonable caution in the belief that an offense has been committed.offense has been committed.
must be decided by a must be decided by a neutral magistrateneutral magistrate must must describe in detaildescribe in detail the place , person the place , person
& things& things
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Fourth AmendmentFourth Amendment
Reasonable expectation of privacyReasonable expectation of privacy - - upheld constitutionally and generally upheld constitutionally and generally includes the physical body, the home includes the physical body, the home & immediate area around it and the & immediate area around it and the office. Generally governs searches office. Generally governs searches under the fourth amendment.under the fourth amendment.
Reasonable searches Reasonable searches would be with would be with a warrant or without a warrant if a warrant or without a warrant if there is there is probable causeprobable cause..
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Fourth AmendmentFourth Amendment
What types of searches could be What types of searches could be warrantless warrantless reasonable searches reasonable searches ??
- sobriety checkpoints- sobriety checkpoints- border crossings / airports- border crossings / airports- drug testing- drug testing- student searches- student searches- consent searches which must - consent searches which must
be be authorizedauthorized and and not coercednot coerced
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Fourth AmendmentFourth Amendment When is a warrant needed?When is a warrant needed?
- an arrest in a person’s home- an arrest in a person’s home- search of a home or office- search of a home or office
When is a warrant When is a warrant not not needed? needed? ((warrantless searchwarrantless search))
- search incident to lawful arrest- search incident to lawful arrest- plain view – - plain view – visiblevisible evidence evidence- hot pursuit – - hot pursuit – follow into buildingfollow into building- automobiles – - automobiles – less expectation of less expectation of
privacyprivacy- exigent circumstances - - exigent circumstances - emergencyemergency
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Fourth AmendmentFourth Amendment
The The exclusionary rule exclusionary rule was defined in the was defined in the case case Weeks v. U.S. Weeks v. U.S. (1914) (1914) which said that which said that if evidence violated the Fourth if evidence violated the Fourth Amendment and was illegally seized it Amendment and was illegally seized it could not be admitted at trial.could not be admitted at trial.
- - this continues to be controversial as this continues to be controversial as can be seen in some Supreme can be seen in some Supreme
CourtCourt interpretationsinterpretations
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Fourth AmendmentFourth Amendment
Expectation of PrivacyExpectation of Privacy
Katz v. U.S. Katz v. U.S. (1967) (1967) - there can be no - there can be no use of wiretaps without a warrant – use of wiretaps without a warrant – even in a phone booth this overruled even in a phone booth this overruled Olmstead v. U.S. Olmstead v. U.S. (1928) (1928) – 4– 4thth Amend. Amend. Protects the people (Protects the people (Katz)Katz) not the not the place (place (phone boothphone booth))
(Current Issue: (Current Issue: cell phones & Patriot cell phones & Patriot Act – are the ‘people’ protected?)Act – are the ‘people’ protected?)
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Fourth AmendmentFourth AmendmentWarrantless SearchesWarrantless Searches
Wolf v. Colorado (1949)Wolf v. Colorado (1949) - - *Incorporated no unreasonable search *Incorporated no unreasonable search & seizure clause& seizure clause
Mapp v. Ohio Mapp v. Ohio (1961) (1961) – must have – must have probable cause probable cause or evidence can be or evidence can be excluded excluded (*Incorporated the (*Incorporated the exclusionary rule)exclusionary rule)
Terry v. Ohio Terry v. Ohio (1968) (1968) – stop & frisk – stop & frisk search for weapons is allowedsearch for weapons is allowed
Minnesota v. DickersonMinnesota v. Dickerson (1993) (1993) – frisk – frisk also allowed for contrabandalso allowed for contraband
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Fourth AmendmentFourth AmendmentWarrantless SearchesWarrantless Searches
Chimel v. CA Chimel v. CA (1969) (1969) – search incident – search incident to arrest is limited to area under the to arrest is limited to area under the person’s immediate control in ‘person’s immediate control in ‘search search incident to arrestincident to arrest’’
U.S. v. LeonU.S. v. Leon (1984) (1984) – police can – police can search on “good faith” that info given search on “good faith” that info given for probable cause is correct (for probable cause is correct (good good faith exception)faith exception)
New Jersey v. T.L.O. New Jersey v. T.L.O. (1985) (1985) – schools – schools only need only need reasonable suspicionreasonable suspicion not not probable cause probable cause for a searchfor a search
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Fourth AmendmentFourth AmendmentWarrantless Searches (drugs)Warrantless Searches (drugs)
Skinner v. Railway Laborers Skinner v. Railway Laborers (1989) (1989) – – federal transportation workers can be drug federal transportation workers can be drug tested due to assurance of safety of tested due to assurance of safety of railroadsrailroads * Chandler v. Miller * Chandler v. Miller (1997) (1997) – but – but notnot
election candidateselection candidates
Vernonia v. Acton Vernonia v. Acton (1995) (1995) – student athletes – student athletes cancan
be tested / safety/ diminished expectation be tested / safety/ diminished expectation of privacyof privacy
Potowatamie v. Earls Potowatamie v. Earls (2002) (2002) – all student – all student activities participants – diminished activities participants – diminished
expectation of privacyexpectation of privacy
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Fourth AmendmentFourth Amendment
Warrantless SearchesWarrantless Searches U.S. v. Ramirez U.S. v. Ramirez (1998) (1998) – “good – “good
faith” exception to the “knock” rulefaith” exception to the “knock” rule
Vehicle SearchesVehicle Searches U.S. v. Ross U.S. v. Ross (1982) (1982) – with probable – with probable
cause to suspect drugs/contraband cause to suspect drugs/contraband may search entire car (may search entire car (the the automobile exception)automobile exception)
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Fourth AmendmentFourth AmendmentVehicle SearchesVehicle Searches
CA. v. Acevedo CA. v. Acevedo (1991) (1991) – diminished – diminished expectation of privacy for cars– also expectation of privacy for cars– also search of container in trunk is search of container in trunk is allowed with probable causeallowed with probable cause
Maryland v. Wilson Maryland v. Wilson (1997) (1997) – can – can search passengerssearch passengers
Wyoming v. HoughtonWyoming v. Houghton (1999) (1999) – can – can search personal itemssearch personal items
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Fourth AmendmentFourth AmendmentVehicle SearchesVehicle Searches
Knowles v. Iowa Knowles v. Iowa (1998) (1998) – search not – search not allowed w/out arrest or probable causeallowed w/out arrest or probable cause
2005: Illinois v. Caballes 2005: Illinois v. Caballes – drug dogs & – drug dogs & traffic stop traffic stop
Public Vehicle SearchesPublic Vehicle Searches Fl v. Bostick Fl v. Bostick (1991) (1991) – ok to search – ok to search
passengers luggage with consentpassengers luggage with consent Bond v. U.SBond v. U.S. (2000) . (2000) – manipulation of – manipulation of
luggage is not okluggage is not ok
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Fifth AmendmentFifth Amendment
No person shall be held to answer for a No person shall be held to answer for a capital, or otherwise infamous crime, capital, or otherwise infamous crime, unless on presentment of an unless on presentment of an indictment indictment of a grand jury, of a grand jury, except in cases arising except in cases arising in the land and naval forces, or in the in the land and naval forces, or in the militia, when in actual service in time of militia, when in actual service in time of war or public danger; not shall anyone war or public danger; not shall anyone be subject be subject for the same offense to be for the same offense to be twice put in jeopardy twice put in jeopardy life and limb; nor life and limb; nor shall be shall be
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Fifth AmendmentFifth Amendment
Compelled, in any criminal case, Compelled, in any criminal case, to be to be a witness against himselfa witness against himself; nor be ; nor be deprived of life, liberty, or property, deprived of life, liberty, or property, without without due process of law; due process of law; nor shall nor shall private property be taken for public private property be taken for public use, without use, without just compensationjust compensation..
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Sixth AmendmentSixth Amendment
In all In all criminal prosecutionscriminal prosecutions, the accused , the accused shall enjoy the right to a shall enjoy the right to a speedy & speedy & public trialpublic trial, by an , by an impartial juryimpartial jury of the of the state and district wherein the crime state and district wherein the crime shall have been committed, which shall have been committed, which district shall have been previously district shall have been previously ascertained by law, and to be ascertained by law, and to be informed informed of the nature and cause of the of the nature and cause of the accusation; accusation; to be to be confronted with the confronted with the witness against him; witness against him; to have to have
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Sixth AmendmentSixth Amendment
compulsory process compulsory process for obtaining for obtaining witnesses in his favor, and to have witnesses in his favor, and to have the the assistance of counsel assistance of counsel for his for his defense.defense.
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Fifth & Sixth AmendmentsFifth & Sixth Amendments
What constitutes What constitutes self-incriminationself-incrimination?? What is covered under What is covered under due due
process process ?? Can a trial be too Can a trial be too speedy & public speedy & public
to be fair?to be fair? How must you beHow must you be informed of informed of
charges charges ?? What constitutes What constitutes right to counselright to counsel ? ?
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Fifth & Sixth AmendmentsFifth & Sixth Amendments
Escobedo v. Illinois Escobedo v. Illinois (1964) (1964) – – information obtained unlawfully in an information obtained unlawfully in an interrogation (ie. Coerced confession) interrogation (ie. Coerced confession) cannot be used in courtcannot be used in court
Miranda v. Arizona Miranda v. Arizona (1966) (1966) – set – set procedural safeguards after arrest procedural safeguards after arrest (“you have the right to remain (“you have the right to remain silent…”)silent…”)
Davis v. U.S. Davis v. U.S. (1994) (1994) – request for – request for lawyer must be clearlawyer must be clear
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Fifth & Sixth AmendmentsFifth & Sixth Amendments Dickerson v. U.S. Dickerson v. U.S. (2000) (2000) – applies – applies
Miranda Miranda to custodial interrogation to custodial interrogation in federal & state-in federal & state-MirandaMiranda may not may not be overruled by act of Congressbe overruled by act of Congress
Missouri v. Seibert (2003)Missouri v. Seibert (2003) – – ok to ok to admit statements made before admit statements made before MirandaMiranda warning if made again warning if made again after warningafter warning
Kelo v. New LondonKelo v. New London (2005)(2005)– – eminent eminent domain domain seizure for ‘public good’seizure for ‘public good’
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Fifth & Sixth AmendmentsFifth & Sixth Amendments Powell v. Alabama (1932) Powell v. Alabama (1932) - - * Incorporated * Incorporated
right to counsel in capital casesright to counsel in capital cases
Gideon v. Wainwright Gideon v. Wainwright (1963) (1963) – overturned – overturned Betts v. Brady Betts v. Brady and gave right to counsel and gave right to counsel for all felony cases – for all felony cases – *Incorporated right *Incorporated right to counsel in felony cases to states to counsel in felony cases to states *in *in forma pauperusforma pauperus
Korematsu v. U.S. Korematsu v. U.S. (1944)(1944) – – during during wartime gov’t may take extreme wartime gov’t may take extreme measures (that deny due process)measures (that deny due process)
Sheppard v. Maxwell Sheppard v. Maxwell (1966)(1966) – – if a judge if a judge does not have control of the courtroom does not have control of the courtroom there cannot be a fair trial ( ‘The there cannot be a fair trial ( ‘The Fugitive’)Fugitive’)
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Seventh AmendmentSeventh Amendment
In suits in In suits in common law, common law, where the where the controversy shall exceed $20, the controversy shall exceed $20, the right of right of trial by jury trial by jury shall be shall be preserved, and no fact tried by a jury preserved, and no fact tried by a jury shall otherwise be reexamined in shall otherwise be reexamined in any court of the Unites States other any court of the Unites States other than according to the rules of than according to the rules of common law.common law.
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Eighth AmendmentEighth Amendment
Excessive bail Excessive bail shall not be shall not be required, nor required, nor excessive fines excessive fines imposed, nor imposed, nor cruel and unusual cruel and unusual punishment punishment inflicted.inflicted.
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Eighth AmendmentEighth AmendmentCruel & Unusual PunishmentCruel & Unusual Punishment
(Death Penalty)(Death Penalty) Robinson v. CA (1962)Robinson v. CA (1962) - - * * Incorporates Incorporates
the cruel & unusual punishment clausethe cruel & unusual punishment clause Furman v. GAFurman v. GA (1972) (1972) – – application of application of
the death penalty in GA is cruel & the death penalty in GA is cruel & unusual (unusual (all states suspend death all states suspend death penalty for four years)penalty for four years)
Gregg v. GA Gregg v. GA (1976)(1976) – – arbitrary arbitrary application of the death penalty application of the death penalty corrected – penalty re-established in corrected – penalty re-established in most statesmost states
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Eighth AmendmentEighth AmendmentCruel & Unusual PunishmentCruel & Unusual Punishment
(Death Penalty)(Death Penalty) Buchanan v. Angelone Buchanan v. Angelone (1998)(1998) – –
mitigating circumstances & the death penalty mitigating circumstances & the death penalty – absence of jury instruction on mitigating – absence of jury instruction on mitigating circumstances does not violate 8circumstances does not violate 8thth amendmentamendment
Atkins v. Virginia (2002)Atkins v. Virginia (2002) – – prohibits death prohibits death penalty for mentally retardedpenalty for mentally retarded
Roper v. Simmons ( 2005)Roper v. Simmons ( 2005) – – prohibits death prohibits death penalty for those 18 years of age & underpenalty for those 18 years of age & under