3.8 - Amendments: Due Process and the Rights of the Accused

Due Process of Law

• Procedural due process: the government has to use fair, non-arbitrary methods when it makes and carries out decisions that affect people's constitutional rights, like giving notice of the charges, a fair hearing, and a neutral judge. The rights of the accused below (Fourth, Fifth, and Sixth Amendments) and rules the Court created, like the exclusionary rule and the Miranda rule, back this up.

• Not absolute: some government interests can justify limiting individual rights. For example, speech can be limited when it's shown to be a danger to public safety (Schenck, Topic 3.3), and police can sometimes question a suspect before reading their rights (the public safety exception, below).

• Compare: substantive due process (Topic 3.9) asks whether a law itself unfairly takes away a right, not whether the government used fair methods.

Fourth Amendment: Unreasonable Searches and Seizures

1. Probable Cause: the officer has good reason to believe a crime happened or is happening. A judge needs probable cause to issue a warrant, and without a warrant it only justifies a search in certain situations, like searching a car or an emergency where there's no time to get one.

2. Search Warrant: judicial authorization specifying what can be searched and when.

3. Consent: the person agrees to the search.

Technology and privacy

• Cell phone searches: the Court has ruled that police generally need a warrant to search cell phone data. In Riley v. California (2014), it held that police can't search the texts, photos, and other data on the phone of someone they arrest without a warrant. In Carpenter v. United States (2018), it held that police also need a warrant to get a person's past location records from their cell phone company.

• Digital monitoring laws: the Patriot Act (2001) expanded wiretapping and metadata collection, and the NSA used it to collect the phone records of millions of Americans in bulk. The USA Freedom Act (2015) limited this: it ended bulk collection, so the phone companies keep the records, and the government needs approval from a special federal court (the FISA court) to get the records of a specific person or phone number it's investigating. Both reflect the ongoing security versus liberty tension.

The Exclusionary Rule

• The rule: illegally obtained evidence can't be used at trial.

• Purpose: forces police to respect Fourth Amendment rights, since breaking the rules costs them the evidence.

• Controversy: can let a factually guilty person go free if key evidence gets thrown out, though they can still be tried using any legally obtained evidence.

• Where it came from: the Fourth Amendment doesn't mention it. The Court created the rule for federal courts (Weeks v. United States, 1914) and applied it to the states in Mapp v. Ohio (1961), another example of selective incorporation.

Sixth Amendment and the Right to Counsel

• Holding: the Court ruled 9-0 that the Sixth Amendment right to counsel applies to the states through the 14th Amendment's Due Process Clause. States now have to provide a lawyer to felony defendants who can't afford one, just like the federal government already did.

• Reasoning: a poor defendant facing trained prosecutors can't get a fair trial without a lawyer, so the right to counsel is a basic part of a fair trial (Justice Black). With a lawyer at his retrial, Gideon was found not guilty.

• Why it matters: it's the main example of procedural due process protecting the accused (EK 3.8.A.3) and of selective incorporation (Topic 3.7).

The Miranda Rule

• Suspects are told about their Fifth Amendment right to stay silent and their Sixth Amendment right to an attorney, including a free one if needed (per Gideon).

• Where it came from: Miranda v. Arizona (1966). If police question a suspect in custody without the warnings, what the suspect says usually can't be used as evidence against them.

• Public safety exception: if there's an immediate public safety concern, police can ask questions before reading rights, and the suspect's answers can still be used in court. Another example of the security versus liberty balance.

Big picture