Happy Fourth of July!

1.  What are two rights should you invoke immediately if you are ever arrested?  What constitutional amendments do those rights come from? 

Invoke the right to remain silent (the Fifth Amendment) and the right to speak with an attorney (the Sixth Amendment)--and then, for goodness sake, shut-the-bleep-up! Another important thing--don't be equivocal.  None of this, "Well maybe I should talk to an attorney," crap.  Say "I want to speak to an attorney and I won't talk to you anymore until I have."  Then--I can't say it enough--stop talking.

(OK, OK, technically before you're formally charged with something your right to an attorney comes from the Fifth Amendment, not the Sixth.  Only once you're actually charged does the Sixth Amendment right to counsel take over, but I didn't think anyone but the (one? two?) lawyers who stop in every so often would get that.  And whatever amendment it comes from, you have a right to counsel once you've been arrested--use it!) 

2.  True or false--the Eighth Amendment requires that you have to be given bail if you are charged with a crime. 

False.  The Eighth Amendment requires that if you are given bail it can't be excessive, but there is no prohibition on just denying bail altogether.

3.  The Sixth Amendment says you get a speedy trial.  According to the United States Supreme Court, how long can you wait for a trial and still have it be "speedy"? 

This is kind of a trick question, because the answer is really "it depends".  It's one of those slippery balancing tests that requires the court to consider four factors 1) length of delay, 2) the reason for the delay, 3) the defendant's assertion of his right, and 4) prejudice to the defendant in waiting.  (Barker v. Wingo, 407 U.S. 514 [1972]).  Theoretically, you could wait years for a trial and it would still be constitutionally hunky-dory.  However, most states have statutes that limit the amount of time between arrest and when you must be charged, and between when you're charged and when your trial is held.  (In Kansas, it's 90 days if you're in jail, 180 if you're out, not counting delays that were caused or agreed to by the defendant.)  Federal statutes provide similar protection in federal court.

4.  When the Bill of Rights was first enacted, all of the rights listed therein only applied in cases of citizen vs. the federal government.  What later amendment has been read to make most of the Bill of Rights also apply in cases of citizen vs. state governments? 

The Fourteenth Amendment due process clause has been read to grant most of the rights listed in the original ten amendments to citizens vs. state governments. 

One right that the United States Supreme Court has specifically said is not incorporated by the Fourteenth Amendment is the Fifth Amendment right to a grand jury.  Unless your specific state has law that requires it, you have no right to a grand jury before being charged in state prosecutions.  However, states that don't have a grand jury right generally have some other form of prosecutorial oversight before a defendant can be put through a full criminal trial.  For example, in Kansas if you don't get a grand jury you do get a preliminary hearing.  At the hearing, a judge looks over what the prosecutor is charging you with and hears evidence to make sure the prosecutor has probable cause to support the charges.

5.  The First Amendment gives essentially two protections with regard to religion--what are they? 

Freedom from religion and freedom of religion.  The text says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

6.  What is the Third Amendment? 

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."  This is apparently the single least cited provision in the entire Bill of Rights.

7.  In District of Columbia v. Heller, 554 U.S. ___ (2008), the United States Supreme Court very recently clarified the Second Amendment.  What important ambiguity did Heller clear-up? 

Prior to Heller it was unclear whether the right to keep and bear arms was an individual right or a collective one related to the forming of a militia.  The confusion stemmed from the prefatory clause of the Second Amendment which references "a well regulated militia".  In overturning D.C.'s handgun ban, the Heller court declared the right "to keep and bear arms" is an individual one and is tied into the right to self-defense. 

8.  Name three exceptions to the Fourth Amendment requirement that police must have a warrant before they can search you or your possessions.

Although there are more, the common exceptions are:

  • Searches with consent--where you give permission to be searched. (Please don't do this, it makes me bang my head against the wall when people do this.)
  • Stop and frisk--where an officer has reasonable suspicion to believe you are involved in a crime he can pat down your outer clothing for weapons if the officer feels his safety is in danger while he's questioning you.
  • Plain feel/plain view--if the officer is somewhere legally and sees something illegal it's OK; if the officer is legally patting you down for weapons and feels something that he immediately knows is illegal--usually drugs--it's OK.
  • Search incident to arrest--if you are lawfully arrested an officer can search you and generally your immediate "grab" area.
  • Exigent circumstances--a situation where stopping to get a warrant would result in imminent danger to life, serious damage to property, the imminent escape of a suspect, or destruction of evidence.  (Example: An officer comes to the door of your house and hears screaming inside or sees blood smeared on the windows.)
  • The automobile exception--if an officer has probable cause to search your car he can do so without a warrant because the mobility of a car basically automatically creates exigent circumstances. 

9.  Most of the Fifth Amendment relates to criminal prosecutions, which twelve words do not? 

"[N]or shall private property be taken for public use, without just compensation."  Important note--this doesn't say private property can't be taken for public use at all, it just says the private property owner has to be justly compensated.  (In other words, imminent domain is a-OK.)

10.  Much of death penalty law comes from the Eighth Amendment restriction on cruel and unusual punishment.  In this decade the United States Supreme Court has declared it is cruel and unusual to execute two specific categories of criminal defendants (based on the defendant him/herself, not based on the crime committed).  What are those two categories?

Juveniles (Roper v. Simmons, 543 U.S. 551 [2005]) and mentally retarded people (Atkins v. Virginia, 536 U.S. 304 [2002]).  As to juveniles, this ban applies if the person was under 18 years old when the crime was committed.  As to mentally retarded people, there is no concrete test (i.e. an IQ cut-off point, a standard) of what makes a person legally "mentally retarded".