William_T._Bianco,_David_T._Canon]_American_Polit

132 Chapter 4Chapter 4 || Civil LibertiesCivil Liberties

Law, Order, and the Rights of Criminal Defendants

Every advanced democracy protects the rights of people who have been accused of

a crime. In the United States, the due process rights of the Fourth, Fifth, Sixth, and

Eighth Amendments include the right to a fair trial, the right to consult a lawyer,

freedom from self-incrimination, the right to know what crime you are accused of, the

right to confront the accuser in court, and freedom from unreasonable police searches.

It is difficult to apply the abstract principles of due process to concrete situations in

a way that protects civil liberties without jeopardizing order. The Fifth and Fourteenth

Amendments specify that life, liberty, and property may not be denied “without due

process of law.” In general, this language refers to procedural restrictions on what

government can do and is based on the idea of fairness and justice. The difficulty comes

in defining what is fair or just.

The difference between abstract principles of due process and their specific

application also raises difficult political questions. Most people endorse the principle

of “due process of law” and general ideas such as requiring that police legally obtain

any evidence used in court. However, when the Supreme Court applies these principles

to protect the rights of criminal defendants, there is a public outcry that too many

suspects are going free on “legal technicalities,” such as having to inform a suspect

of his or her right to talk to an attorney before being questioned by the police. Elected

politicians are very vulnerable to such public pressure and have a strong incentive to be

“tough on crime,” while the courts are left to decide whether a specific case involves a

legal technicality or a fundamental civil liberty.

The Fourth Amendment: Unreasonable Searches and Seizures

The Fourth Amendment says: “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” Defining “unreasonable” puts us back in the familiar position of drawing

lines and balancing interests.

Over the years, the Supreme Court has provided strong protections against

searches within a person’s physical space, typically defined as his or her home. With

the introduction of new technology—first telephones and wiretapping, then more

sophisticated listening and searching devices—the Court has had to confront a broad

array of complicated questions. It has attempted to achieve a balance between privacy

and security by requiring the courts to approve search warrants, yet continuing to

carve out limited exceptions to this general rule.

Searches and Warrants Under most circumstances, a law-enforcement official

seeking a search warrant must provide the court with “personal knowledge” of a

“probable cause” of specific criminal activity and must outline the evidence that is the

target of the search. Broad, general “fishing expeditions” for evidence are not allowed.

School officials must also balance the constitutional rights of students against

the need to maintain discipline. But school searches may be permitted with a weaker

“reasonable suspicion”; this is because the courts have viewed the schools as “in loco

parentis” (that is, as playing the role of surrogate parents for the students). In 1985, the

Court ruled in favor of a school official who discovered two girls smoking in a school

bathroom and, in searching the purse of one of the girls for cigarettes, found marijuana,

DESCRIBE THE PROTECTIONS

PROVIDED FOR PEOPLE

ACCUSED OF A CRIME

due process rights

The idea that laws and legal

proceedings must be fair. The

Constitution guarantees that the

government cannot take away a

person’s “life, liberty, or property,

without due process of law.” Other

specific due process rights are found

in the Fourth, Fifth, Sixth, and Eighth

Amendments, such as protection

from self-incrimination and freedom

from illegal searches.

The question of whether the

government can compel companies

like Apple to assist them in unlocking

phones so they can conduct a search

remains contentious. This issue became

especially prominent after the 2015

shooting in San Bernardino, California,

when the FBI ordered Apple to unlock

the suspect’s phone. The FBI dropped

the lawsuit once they unlocked the

phone without Apple’s help. But in 2018,

Apple announced it had changed the

iPhone so it couldn’t be unlocked.

Full_05_APT_64431_ch04_102-147.indd 132 16/11/18 1:31 PM