CHAPTER 5+CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 107 PROCEDURAL DUE-PROCESS RIGHTS IN ACTION: A HYPOTHETICAL CASE legal errors had been made at the trial.The authorities had wanted Palko to receive the death penalty,so they appealed the decision.Palko was tried again Perhaps the best way to illustrate how procedural due to make bail,unless the judge has adequate evidence to on the same charges,and this time e was sentenced to death.He appealed to the prooess rights protect the individual is to present a believe that they will not appear for trial or are dangerous U.S.Supreme Court,claiming that Connecticut's second trial violated his right hypothetical case.Let us say that John O.Student has to others. not to be tried twice for the same crime.The Fifth Amendment to the U.S. been selling illegal drugs on campus.In order for the Under the Sixth Amendment,Mr.Student is entitled to Constitution prohibits double jeopardy,and so do many state constitutions,but police to arrest Mr.Student legally,they must have a "speedy trial."But court backlogs and assorted other at the time Connecticut's did not.The Supreme Court refused to overtum 'probable cause"to do so-some indication that a crime Palko's second conviction,and he was executed. has commited,such as evidence delays can trial back as muchsa year after an arrest.Jury trials are required(Sixth Amendment) Justice Benjamin Cardozo wrote the Court's Palko opinion,which stated that Linking Mr.Student to drug sales.If the police apprehend for serious crimes unless that right is waived by the the Fourteenth Amendment protects rights"fundamental"to liberty but not Freedom of expression is the Mr.Student merely because they wonder how he got the defendant.Most juries consist of twelve persons.On the money to pay for the new sports carhe is driving and then federal level and in most states,a unanimous jury verdict other rights provided in the Bill of Rights.Free expression is a"fundamental" happen to discover evidence of drug trafficking,he may is needed for a conviction.At his trial,Mr.Student cannot right,since it is "the indispensable condition of nearly every other form of condition,of nearly every other Torw of freedom. svoid conviction on the grounds that his Fourth Amend- be forced to give testimony against himself (Fifth Amend- freedom."Some procedural due-process rights,such as protection against Benjamin Cardozo,Palko ment protection against illegal search and seizure has ment)and has the right to confront witnesses against him double jeopardy,are not in the same category,Cardozo claimed. V,Connecticut(193刀 een violated. When Mr.Student is arrested,the police m (Sixth Amendment).There are also prohibitions on the nay search for bythe prosecution obtained Selective Incorporation of Procedural Rights.Not until the 1960s did the evidence,although the extent of this search is subject to evidence (Fourth Amendment),although the Supreme Court broadly require states to safeguard procedural rights.The Court"incor- Fourth Amendment limitations.In general,the Supreme Court has held that the area that can be searched withou Court has relaxed this ban in certain instances,such as porated"Bill of Rights protections for the accused in state courts by ruling that when the evidence would eventually have been discov- these protections are covered by the Fourteenth Amendment's guarantee of due a warrant is limited to the suspect's person and the cred anyway. immediate area,and then only to preserve the evidence process of law (see Table 5-1).This incorporation process began with Mappv. and to protect the arresting officers from harm.Ordinarily, If Mr.appeal the verdict to a higher court.While the Constitution does not guarantee Ohio (1961).Doliree Mapp's home had been entered by Cleveland police,who. pollce should have a search warrant to look for evidence an appeal after conviction,the federal govemment and all though they failed to find the drugs they were looking for,did discover some in a suspect's house or place of business;to obtain such a states permit at least one appeal.The Supreme Court has pornographic material.Mapp's conviction for its possession was overtumed by warrant,o to a judge and show probable ruled that the appeal process cannot discriminate against the Supreme Court on the grounds that she had been subjected to unreasonable cause. search and seizure With this decision,the Court extended the exclusionary After Mr.Student has been arrested,police int poor defendants.At a minimum,goverment must pro rule to state trial proceedings. tion should not begin until he has been informed of his vide convicted persons unable to pay the coss of an appeal with free legal counsel and transcripts of the rights,including the right to remain silent (Fifth Amend- original trial h.,.302U5.319(193 ment)and the right to have an attorney present(Sixth The Constitution limits the punishment that Mr.Stu- .hi,357U.5.6431961). Amendment).Mr.Student also has the right to be brought dent can be given for his crime.The Eighth Amendment before a judge without undue delay and informed of the charge against him.If he Mr.Student can apply for forbids"cruel and unusual punishment,"a provision that the Supreme Court cited in 1972 when it temporarily halted the death penalty because the states were imposing TABLE 5-1 The Supreme Court's Application of the Bill of Rights Mr.Student also has the right to seek reasonable bail to the States:Leading Cases it arbitrarily.A few years later,the Court declared that the (Eighth Amendmen)basedon the Y四 severity of the alleged crime and the likelihood that the death penalty as suchwasy permissible. Our discussion of Mr.Student's case presumes that all accused person will return for trial if he or she is released on bail respected by the police and the GiHaw v.New York 1925 Flrst Amendment's applicability to If Mr.Student is charged with a federal crime,an However,there is often a marked difference between procedural rights and actual practices.For example.police Fiske v.Kanses 1927 indictme ust be handed down by agand jury,which Proe speech hears evidence from the prosecution and determines sometimes conduct sweep searches,frisking people on the Near v.Minneaota 1931 street without having any reason to believe they have Free press whether this evidence is strong enough to suggest that Mr. Dejange v.Oregon 1937 committed a specific crime.A person found to be car Freedom of assembly and of Student has indeed violated the law and should be yig a concealed w indicted to stand trial.Most states do not make extensive to propertyrdrugs is likely to petition Cantult v.Coeclicut 1940 be arrested,tried,and convicted,for it is very difficult to Religious freodom use of the grand jury;rather,they let prosecutors directly Mapp v.Ohio fle a bill of information with a court,detailing the charge prove in court that the pollce had no reasonable basis for 1961 Unreasonable search and seizure the search that led to the arrest. Gideon v.Wuimsoright 1963 Right to counsel and the evidence.After an indictment,the ball decision is Mailoy v.Hogon 1964 Self-incrimination reviewed by the court.In more serious cases,bail can be Pointer v.Texes 1965 revoked if it has not already been denied.In federal cas ment which informns this Right to confront wimnesses Miranda v.Arizons the Bail Reform Act of 1966 requires that accused persons be released on their own recognlzance if they are unable 会 1966 Self-incrimination Klopfer v.Nartk Carolina 1967 Speedy trial Duncsn v.Louisitn 1968 Jury trial in criminal cases Bentow v.Marylend 1969 Doable joopardy