Define! What is “Due Process?”

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Presentation transcript:

Define! What is “Due Process?” What is the difference between a felony and a misdemeanor?

Amendment 4, 5, 14Th

Due Process 5th Amendment-Government cannot deprive any person of “life, liberty, or property” w out due process 14th Amendment means that the states must abide by this, too. *** The government must act fairly and in accord with established rules/laws

Arrest/Mugshot/charged

Court

Conviction/Game Over

Procedural Due Process Deals with the “how” (procedures, methods) of government action How the government went about, lets say, an arrest Rochin V. California

Substantive Due Process Substantive Due Process involves the “what” of government action. Pierce V Society of Sisters The law violated the 14th Amendment-purposely made to destroy parochial education The Court clearly said that the law, while never implemented, was a violation of substantive due process

Police Power Remember the “Reserved Powers?” This ALSO includes the power given to the police Police power and enforcement is the authority of each State to protect, health, safety, “morals”, and general welfare. The intertwining of police power with our individual rights is controversial Take DUI testing.

Are you incriminating yourself? Basically, you stand to “incriminate yourself” (5th Amendment) Is it an unlawful “search and seizure?” 4th Amendment Or is it a proper use of the police power? State says “NO PROBLEM”! The right of the people to protect ourselves against drunk drivers and has rejected “individual rights” argument.

Schmerber V. California The Court ruled that you can have your blood drawn to detect alcohol-this is not a violation of your rights- “goes with ALL testing” The police officer had reasonable grounds to assume the driver was drunk. He had the right to test him. If he had delayed and got a warrant, the “evidence” could have disappeared. Blood, breath, or urine

Protecting US State can mandate that to promote public health, safety, “Morals” they could limit our rights Alcohol, tobacco, vaccinations TO regulate safety-limit rights of carry concealed weapon, seatbelts, punish drunk drivers. To promote “morals” states can restrict gambling or obscene materials, prostitution You MUST go to school, provide help to those in medical need