Substantive Law Study Support

Questions for Review and Responses

1. Which amendments in the Bill of Rights provide constitutional protection in criminal cases?
The Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments provide constitutional protection in criminal cases.

2. What is the importance of the Fourteenth Amendment and the Incorporation Doctrine to constitutional rights of those accused of crimes?
The Bill of Rights, which contains most of the enumerated rights of those accused of crimes, applies only to the federal government. It is through the Fourteenth Amendment Due Process Clause that the Court applies these rights to state actions. This is known as the Incorporation Doctrine and makes the Bill of Rights applicable in state criminal cases.

3. What is the exclusionary rule?

Evidence obtained by police in violation of a person’s constitutional rights is not admissible in court to establish guilt. The rule is subject to numerous exceptions.

4. What are some of the arguments for and against the exclusionary rule?

The main argument for the rule is that it is necessary to protect constitutional rights of individuals and to deter illegal police activity. The argument against the rule is that it often results in guilty people going free.

5. What types of police activities are governed by the Fourth Amendment?
The Fourth Amendment governs police searches and seizures of property or persons (including arrests and detentions).

6. What rights are found in the Fifth Amendment?

The Fifth Amendment provides for the right not to be forced to testify against one’s self, the right not to be subject to double jeopardy, the right to a grand jury hearing, and a general right of due process.

7. What is the importance of the Miranda decision?

In the Miranda case, the Supreme Court decided that in any custodial interrogation, police must advise suspects of their right to remain silent and their right to counsel.

8. What rights are found in the Sixth Amendment?

The Sixth Amendment provides several rights dealing with a fair trial. Included are the right to counsel, the right to a speedy and public trial, the right to an impartial jury in the district where the crime was committed, the right to confront witnesses, and the right to compulsory process to obtain witnesses.

9. What rights are found in the Eighth Amendment?

The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.

10. Which constitutional rights apply to juvenile proceedings, and which do not?

Most rights apply to juvenile proceedings with the exception of the right to a jury trial and bail.

Questions for Analysis and Responses

1. Review the hypothetical case in Living with the Constitution. Do you think that it is reasonable for Detective Branigan to detain Stevenson? Does she have probable cause to arrest Stevenson? Does she have probable cause to search the

Stevenson backyard? Assuming that she does have probable cause to arrest and search, do you think she needs a warrant to do either or both? Explain.
This answer calls for student opinion.

2. Review the cases in the chapter dealing with the right to counsel. Do you think a person can get a fair trial without a lawyer? If not, how can the Court allow defendants to represent themselves at trial?
This answer calls for student opinion.

3. Consider the following facts: In a trial for murder, the court allowed a police officer to testify as to statements that a mortally wounded victim made. Defendant claimed that this violated his constitutional right to confront witnesses. Is the defendant correct? Discuss. (See Michigan v. Bryant, 562 U.S. (2011))

The Court found in Michigan v. Bryant that a statement given to the police by a wounded crime victim identifying the person who shot him may be admitted as evidence at the trial if the victim dies before the trial and thus does not appear. The reason provided is that the primary purpose of the police interrogation was to enable the police to deal with an ongoing emergency.

Assignments and Projects

1. Visit a local court that hears criminal cases. Sit in on some pretrial hearings.

Describe the proceeding, and explain how the constitutional rights discussed in this chapter affected or influenced the hearing.
Student answers will vary according to the court they attend and the pretrial hearings they observe.

2. Read the selection from the government’s brief in Skilling v. U.S. in Appendix G. Summarize the argument.
Student answers will vary, but key points from the argument include:

- The denial of Skilling’s venue transfer motions did not violate his fair-trial rights.

- Skilling failed to establish a constitutional violation.

- The jury in Skilling’s case was impartial.