WESTMONT HILLTOP HIGH SCHOOL
American
Government
Brian Moore
Chapter 1
Introduction
Introductory concepts:
The purpose of this chapter is to provide you with
some of the basic terms associated with the study
of government and politics.
power
politics
political science
government
WHAT IS GOVERNMENT?
please note that the concepts of power, politics, government, authority, and
political science are concepts found on the unit 1 test.
Government is the primary institution in which political power is
exercised. What is political power? Who has power? Who does
not have power? What is the difference between power and
authority? Power will be the underlying concept throughout this
book, as government is the arbiter (one appointed to act as
judge or referee) of power in a society.
Chris is late for an appointment and is in a hurry. Pulling out of
the driveway, Chris sees the neighborhood kids playing by the
street. A posted 25 m.p.h sign sits to his right as he pulls out into
the street. A stop sign is merely 100 yards down the street. What
will Chris do? What will the kids do? Why will they choose their
decisions?
The decisions that Chris (and others) will make are connected
with power. Does Chris pull out into the street honking the horn
hoping the kids will step aside? Does Chris drive faster than the
posted speed limit? Chris always thought that the stop sign was
unnecessary and can easily see at the intersection if there are any
cars. Should Chris run the stop sign?
running the stop sign, will the officer pull Chris over and cite him
or just let him off with a warning?
Power is the ability to get someone to do something that he or
she otherwise would not do. In the United States, we believe that
power is something voluntarily given up in order to achieve a
benefit or avoid a consequence. We may not always act in that
belief, but that is cultural belief that led to the establishment of
our government. A primary purpose of this course is to
emphasize that you do have choices in life, and one of those
choices is giving power to others.
If Chris decides to race out into the road with the horn blaring,
he is choosing not to give power up to the kids (choosing his
desire to be at his appointment quickly over the safety of his
neighbors) nor to the government (risking a fine and possible
points added to his license in order to get to the appointment
faster). If the kids choose not to move out of the road, thus not
giving up power, then they face the consequence of being hit if
Chris does not stop.
Just because one has power, does not mean that he or she has
authority. The reverse is true as well; a person with authority
can be made powerless. Someone with authority has the right to
control or direct actions of others, legitimized by law, morality,
If Chris pulls out honking the horn, will the kids step out of the
way? If a police officer sees Chris exceeding the speed limit or
custom, or consent. Having the right is not the same as having
the ability. The children that Chris does or does not stop for have
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no authority over him, but Chris may be influenced by those that
road as well as the criminal justice process have also been
do. A police officer has the authority to not only detain Chris, but
established under different governments of the past.
to use lethal force if it is needed to do so.
As you will see later in this text, if harm is caused (or clear
Citizens compete to hold the positions that give them the
authority to create (or authorize someone else to create) laws
potential of harm exists), government plays the role of using or
and procedures. Laws are created, changed and subjected to
arbitrating power, as the United States governments (national,
interpretation by citizens at different times. These events can
state, and local) have established an independent court system
change meaning, words, or enforcement of the laws. Although
and granted it the authority to hear disputes between different
government is one of those stabilizing institutions in our society,
groups when harm is caused or people are endangered by the
laws and law enforcement is also subject to alteration,
actions of others.
questioning, and challenge.
The parents of the kids, if the children are injured, have the right
The purpose of this course is to instruct and assess a student’s
to sue Chris. They will do this through a legal process that has
understand of the purpose and function of government. There
been set up by elected and appointed officials and will be
will be some comparative study, but the course will focus on the
evaluated in the judicial process, unless the parties can come to
American government system. Below are some introductory
an agreement outside of court. In this case, the government(s)
definitions of government, politics, and power.
merely provides a place and people with expertise (judge,
licensing process for attorneys) to help with the dispute between
citizens.
In addition to trying to arbitrate a solution, a government agent
may also charge Chris with a crime. Chris will have the
opportunity to challenge any charges made against him and
presenting facts that could show doubt as to his guilt, to show
Government is the primary institution in which political power is
exercised.
Political power is the ability to get people to do something that
they would otherwise not have done.
Authority is the right to control or direct actions of others, made
legitimate by laws, morality, custom, or consent.
justification in his actions, or to show how no harm could result in
his actions. The rules and laws which govern the rules of the
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Politics, though often used as a pejorative (negative label) word,
is simply another word for political power between people,
groups, institutions, and/or governments.
Therefore a study in Political Science is the systematic study of
how people, groups, and institutions deal with politics. By
systematic, political scientists look for/measure patterns of
behavior (quantitative analysis) and/or case studies to illustrate
ideas (qualitative analysis).
In this course, we will examine major concepts in how the
American political system works. The course is set up to help
students to obtain a practical understanding of aspects of how
the political system operates and to assess that system from a
personal perspective. Because a basic literacy of government is
needed to assess the system, sections and additional chapters
are included to help refresh or provide basic information in order
to 1) yield more successful grades and 2) better literacy about
American government for students to define themselves
politically.
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Unit 1 concepts:
Chapter 2
Unit 1:
Rights and
Responsibilities
purpose of government
liberty
speech
Constitutional rights and limits
precedents
criminal justice system
judicial terms
Applicable PDE standards:
With the rights of free expression and liberty comes
with a need to act responsibly in order to prevent
harm to others. This unit presents rights and cases
from a judicial perspective. Students will review
mock Constitutional and criminal cases as judge or
jury in order to help with prompts evaluating rights
and the American criminal justice system.
5.1.12.E: Analyze and assess the rights of people as written in the PA Constitution
and the US Constitution.
5.3.12.F: Analyze landmark United States Supreme Court interpretations of the
Constitution and its Amendments.
5.1.12.F: Evaluate the role of nationalism in uniting and dividing citizens.
5.1.12.A: Analyze the sources, purposes, functions of law, and how the rule of
law protects individual rights and promotes the common good.
Section 1
Interpreting the 1st Amendment
IN THIS SECTION
In your unit 1 packet, there is a mock case entitled Benny v. Pennsylvania in which
1. What are the contents of the First
Amendment?
a high school student burns the American flag in protest of a school policy.
2. What is symbolic speech?
system. As a member of the judicial branch, it will be your job to interpret the law
3. How do justices rule on cases?
in the context of the set of facts presented. Past cases dealing with similar facts,
4. How do strict or loose (liberal)
constructionists view the Constitution?
also known as precedents, will assist you in shaping your interpretation. As you
5. What is the significance of a precedent?
perspectives on the law and that a singular interpretation does not exist. In
6. For further information (types of law,
American judicial system)
You will be asked to evaluate the case as a justice in the federal (national) court
read these precedents, you will understand that there are various different
addition, each case has a unique set of facts that can affect how the law is to be
interpreted. In other words, there is no “right” answer to these cases. It will be the
matter of interpreting the facts, understanding the law, examining past cases that
are similar, and applying a judicial interpretation based on your personal beliefs.
Consider the character of Chris from the power examples in the introduction. If
Chris ran the stop sign and broke the speed limit, the facts show he broke the law.
But are there circumstances in an emergency situation which would excuse Chris
from abiding by the law? Some of your classmates will state “yes”, while others
will state “no’.
Those who say “no” likely support the European civil law tradition and are more
strict in their interpretation of the law. The law is the law and must be obeyed. If
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the law is too strict, then it needs to be changed. Regardless of
Mock case: Benny v. Pennsylvania
the reason or if the law is questioned as reasonable or fair, the law
states a specific punishment for violating it.
Those who say “yes” likely support the British common law
tradition and are more loose/liberal in their interpretation. They
are more likely to state that the law has a function or purpose.
The speed limit and stop sign are there to promote public safety.
But if the traffic conditions are safe enough, the driver is still
regarding public safety in going beyond the limits set, and the
In your unit 1 packet, you will be asked to play the role of federal
judge and rule on a mock case entitled Benny v. Pennsylvania.
When ruling on the case you will review 1) the facts, 2) the law in
order to reach your ruling. You, like actual judges, will also
consult several different cases that have similar facts
(precedents) that can help guide you in your ruling.
Your ruling will come from a combination of the review of facts,
circumstances under which the person chose to break the law are
the wording of the law, applicable rulings in past cases, combined
severe enough, then these facts must be weighed before
with your own judicial perspective. The purpose of this section is
determining whether to or how to apply a punishment for violating
to help guide you through the process.
the law.
In school, do you prefer that rules be strictly enforced or do they
provide guidelines where exceptions can be made? Who has the
authority to make those exceptions? If you are penalized for
violating the rule, where and how can you get due process (right
to have your case heard in order to determine if rights and/or fair
application of the law are being followed)? What are your rights
with regard to school policy? Whom do you seek if you feel rights
are being violated? All of these questions may ultimately be
subject to judicial interpretation.
The Facts
Read over the facts in the case and highlight or underline the
facts which you think are most relevant. The facts start out
stating that Jack Benny is an 18 year-old high school student.
Which of these facts are most relevant with respect to his First
Amendment rights? If being under 18 (a minor) changes a
person’s right of freedom of speech or even if the minor can be
charged with a crime, then Benny’s age is very relevant. In this
case his age is not likely to be significant, given he is 18. The fact
that he is a high school student is more relevant, as his protest
was against a school policy that could impact his current and
future educational opportunities.
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Another aspect which applies to both the facts and the law is the
and county law cannot violate state law and the state
concept of in loco parentis, which is Latin for “in place of the
Constitution. Likewise local and state laws cannot violate
parents.” Although school is a government entity and therefore
Constitutional rights. If the Benny case were a trial to determine if
bound by Constitutional obligations, it also is seen as providing
he was guilty based on the facts, this would be a statutory case.
the place of a parent by reinforcing positive behaviors and
Since this is a Constitutional case, the laws/rules themselves are
punishing negative behaviors. These two simultaneous roles the
on trial to determine if they violate the Constitution. If they are in
school plays (government and guardian) can come into conflict
violation, then Benny cannot be found guilty of a law that violates
with each other.
his rights. If they are not, then the consequences of the violation
In loco parentis first were defined in the 1943 Supreme Court
ruling in West Virginia v. Barnette. This is the landmark case ruled
that students cannot be forced to salute the American flag. When
reading the precedents in the packet, you will read how in loco
parentis actually expanded the Fourth Amendment (covered in the
next section), giving school greater rights to search students than
law enforcement officials are allowed once the student leaves
school grounds.
The Law
Ultimately the judicial branch evaluates the facts in context of the
of those laws will be determined by what the statutes say and
how the facts are lined up relative to the charges.
United States Constitution, Amendment I (1791)
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or of the right of the people to
peaceably to assemble, and to petition the government for a
redress of grievances.
Only part of this law is applicable: “Congress shall make no
law...abridging the freedom of speech...”. Although a short
law. In the case for your prompt, you are reviewing facts that are
statement, it needs to be clearly defined and has been subject to
relevant to Constitutional rights. The issue of guilt or innocence is
a great deal of scrutiny and interpretation.
not important in a Constitutional case. Benny is not on trial here,
the laws and charges against him are on trial. He is guilty of
violating the laws/rules, but this is not the “law” at issue. You
need to determine if the laws and/or charges against Benny
violate his right to free speech. In the American system, local
First, as a result of the Supremacy Clause, the Fourteenth
Amendment, and court precedents, you should know that the
school follows the same rules as the national government, so the
“Congress shall make no law” also applies to public school
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policy. Your Red and Gray student handbook actually begins by
reduce in scope. This means that neither Congress nor your
declaring your rights before addressing responsibilities and rules.
school administration has the right to diminish or reduce in scope
#4 on the list is the right to free expression.
your right to free speech. This right, as with all others, are not
In addtion to the Supremacy Clause, the matter of the
punishment of the student by the school can be addressed. Why
a school suspension becomes a Supreme Court matter,
regardless of the question of free speech, stems from the
decision in 1975 of Goss v. Lopez.
In Goss v. Lopez, the Supreme Court ruled on a narrow 5-4 vote
that a student has a right to an education under the 14th
Amendment. The court loosely interpreted the right to an
education as a “property right” in which the government must
provide equal protection to all citizens for due process rights.
This case has set the precedent that all students who are
suspended beyond 3 days have full due process rights, as their
absolute. One must know the basic foundation and function of
government and by examining precedents in order define the
limits of what is “free speech”.
Essentially, you can exercise your rights as long as you cause no
harm to others in the process. If your practice of free speech
prevents your classmates from learning a lesson (and thus
depriving students of an education and the school from fulfilling
its primary function), you are no longer protected by the First
Amendment. But what if someone expresses an unpopular view
about a group in a class discussion? Where are the limits of
harm?
In the mock case you are reading, the student is expressing his
education right is deemed as being taken away. If you accept
views on a school policy. He believes it to violate his
this ruling, then the outcome of Goss sets the standard
Constitutional rights. But he “expresses” his dissatisfaction
(precedent) that the student has fundamental rights in a public
through an action rather than words. His actions involve the use
school setting (for more on this, link to this article) if the student is
of fire and a fight breaks out connected to his actions. This
suspended for more than 3 days. This case, therefore, will be the
brings up questions as to whether his actions are a threat to
basis of both the First Amendment case and the Fourth
others and therefore Benny’s actions were beyond his right to free
Amendment case discussed in class.
speech. This can also be tricky because the particular facts of
The word “abridge” should be defined to determine how strongly
the right is guaranteed. There are several definitions of abridging,
this case may cause you to rule that Benny is not protected by
some laws/rules because of his actions, but that others are a
but the accepted one that applies to rights means to diminish or
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violation of his right. Here is where the precedents are needed to
disruption to the function of the public property and potential
help determine when or where the First Amendment may apply.
danger or harm that Benny posed to others.
As this is a Constitutional case, both the fictitious Pennsylvania
Finally, there is the school punishment. How much authority
law and the breach of peace charge are subject to review [for
should a public school have over its student and what
more on the relationship, see Section 3]. You may determine that
circumstances should prevent a school from being able to punish
both laws do not violate the First Amendment, one does, or that
a student. Can any incident on school grounds be with the
neither do. Simply arguing Benny should be punished because
school’s jurisdiction (location or type of case in which a
he violated a law law is not a legitimate justification. Any law that
government entity has authorty)? What if something happens
contradicts a Constitutional right is not legitimate and negates
after school is out? What if a student was involved in an incident
any consequence for violating the law, as the Constitution is
off school grounds? What if that action relates to the school?
superior to any law.
If you determine that the Pennsylvania law is Constitutional, you
first have to examine what is said about the Pennsylvania law and
The precedents presented ahead are designed to help clarify the
law and how to interpret it, but ultimately you will need to apply
your judicial perspective to the law.
review the wording of the First Amendment. Is restricting flag
burning to private property considered a form of “abridging”
speech? Is the American flag a symbol that gets different
protection than other symbols? Is burning a flag a form of
“speech”?
Breach of peace is a non-specific charge that can relate to two
incidents in this case. First is the fire. The act of igniting a fire in
The Precedents
Is burning the American flag a form of “speech” that is protected
by the First Amendment?
Read the two precedents Tinker v. DesMoines (1969) and Texas
a parking lot may be viewed as a breach of peace, as burning can
v. Johnson (1989). You will find that in the past the court has 1)
be considered a violent act. Second is the fight. Did Benny
upheld symbolic speech (actions instead of words) as a form of
instigate the fight or did the other student start it by not showing
speech and 2) that flag burning is in protest has been determined
appropriate restraint? You need to consider the level of
to be a protected form of speech. Please note that in both cases,
the decision were not unanimous. Tinker ruled in favor of the
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students in a 7-2 vote and Texas ruled in favor of flag burning
who engages in activity off school grounds but during the school
during protest of a presidential convention in Dallas by only a 5-4
day, witnessed by students on school time and school grounds,
vote. The Texas case, although upholding flag burning in general
and are when the student is in violation of the school stated
as a form of protected speech, clarifies that certain speech
policy on drugs. Fraser was ruled 7-2 in favor of the school while
methods can be subject to regulation provided that the message
Morse ruled for the school in a closer 5-4 vote.
can still be conveyed. When reviewing the case, you can look up
the dissenting opinions which pointed out the statement that the
flag is a revered symbol of the United States and the fact that 48
of the states at the time had anti-desecration laws on their books.
This may lead you to side with the 4 dissenting justices and
overturn Texas v. Johnson. If you side with the majority opinions
on the cases, you may decide that no significant harm or threat of
harm was caused by Benny and uphold both the Tinker and Texas
cases. Since the facts are different for each case, you also may
not side with one case but side with the other.
Although the Tinker case prevents schools from absolute control
The final two precedents presented focus on the offensive nature
of the citizen’s actions or words. R.A.V. v. St. Paul (1992) allows
for greater protection for people who use words that are likely to
cause anger or resentment in others, but also helped clarify when
harmful exercise of speech or liberty may be controlled. Both the
majority and the dissenting opinions did agree that speech/action
may be regulated based on how it is conducted (such as too loud
or where it is likely to cause danger), but they disagreed on
whether or not the law itself was overbroad and be used to
suppress unpopular speech. Cohen v. California (1971) also deals
with offensive speech in a public place, but is an issue of
over student expression, other cases have defined limits for
profanity. In this case, the profanity was clearly tied with an
student action. The precedents Bethel v. Fraser (1986) and Morse
opinion on a government policy.
v. Frederick (2007) help define the authority a school has over
the law in the R.A.V. case was not too broad, while they did thing
student expression when it comes to applying its rules. In this
the California law used to arrest Cohen was in the Cohen case.
case a student was punished for violating school rules in a
speech given in favor of a fellow classmate who was running for
student government. There was nothing wrong with the fact that
he gave a speech endorsing a classmate, it was the method
which he chose to say it. In the Morse case, a precedent was
The Supreme Court ruled that
You are welcome to look for other cases. A wikipedia search of
any of the cases above will give you a list of free speech cases by
the type of speech that is in question. There are also additional
cases in the packet including Boomer, Karr, and Cheema.
established allowing a school to go as far as to penalize a student
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The precedents presented are there to help you both define your
within four months (less than 180 days) of her initial discovery and
ruling in the Benny case and to help you establish your sense of
inquiry. Goodyear claimed that regardless of the issue of
judicial philosophy.
discrimination, the 180 days from her last pay evaluation actually
Judicial Philosophy and the Precedents
You will also have the opportunity to present your understanding
of different judicial philosophies and apply it in either these cases,
or in the unrelated case of Ledbetter v. Goodyear Tire and Rubber
Company (2007). The Ledbetter case is useful because it easily
defines the difference between a strict constructionist and a
ended in September 1997, so her July 1998 complaint was more
than the 180 days from the alleged act of discrimination.
The case boiled down to statute of limitations. Did the clock
start ticking on her opportunity to file a claim when she received
her last evaluation that would have affected her paycheck (March
1997)? Did it start when she discovered the inequality (March of
1998)? Would it start each time she received either a paycheck or
loose constructionist position. Lilly Ledbetter, a retired
retirement check? The fundamental quetion is: what is the last
employee of Goodyear Tire and Rubber, discovered that she may
overt act of discrimination?
have been a victim of sex discrimination regarding her pay as
compared to male employees in similar positions. She began to
If you believe that the evaluation, in which an evaluator would
inquire into possible sex discrimination on pay raises in her time
may have considered her gender as a factor in her getting a raise,
working for Goodyear from 1979 to her early retirement in 1998.
then she had to file within 180 days following her evaluation in
Although she won her lawsuit against Goodyear, the company
March 1997, as Goodyear claimed. If you find yourself agreeing
appealed the case to federal court on the grounds that the Equal
with Goodyear’s position, then you are more strict
Pay Act of 1963 clearly stated that she had to file within 180 days
constructionist in your interpretation of the law. Goodyear
of the alleged discrimination. Goodyear claimed that she was
claimed the last alleged act of discrimination would have been in
outside of the 180 day limit.
March of 1997, making September 1997 the end of the 180 day
Ledbetter had inquired in March of 1998 to the possibility of sex
period.
discrimination (she had been earning between $500 and $1,500
In the Benny and other cases (if you accept the premise that
per month less than all 15 men who worked during the same 19
symbolic speech is a form of speech), then you would protect
year period with the company).
Benny on wording of the First Amendment in most or all of the
She filed a formal complaint
with the federal Equal Employment Opportunity Commission
charges. If you want to protect the flag from being burned, a
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strict constructionist would argue, an amendment to the
the First Amendment and are signs of a greater degree of loose
Constitution must specifically be adopted. The issues of either
constructionism.
the fight or the fire are not as clear to apply to strict or loose
constructionist views, but an extreme strict constructionist would
more likely favor the accused than the government, as the First
Amendment does not say anything about the type of speech that
can be regulated.
If you believe that the Equal Pay Act is written in a way that
allows companies to discriminate too easily and get away with it,
you might rule in favor of Ledbetter because of the intention of
the law rather than the literal wording. When you add meaning to
the wording of the law without requiring a change in the law, you
are taking a loose constructionist point of view. A loose
constructionist allows for a more flexible Constitution and laws.
They do not need as much change because court law can be
imposed to alter the meaning of the law without having to change
the actual words.
If you choose to start the clock at the the last paycheck, you are
leaning loose constructionist, but are not taking an extreme
position. Look at your opinion on the Benny and other cases.
In the Ledbetter case, ultimately the strict constructionists
were in the majority, throwing out the lawsuit because they
interpreted the 180 days had started nearly a full year before
Ledbetter filed her her inquiry. She therefore was determined by
the majority to have filed too late and was denied any
compensation she won based on the wording of the law.
This ruling led to the Lilly Ledbetter Fair Pay Act which passed in
January 2009 and was the very first act signed by President
Obama. The law would have made Ledbetter’s claim legal (note:
since this law was passed after the Ledbetter case was ruled on,
she was never able to file a suit under the new law), but that is
ultimately the strict constructionist argument: if you do not like
the way the law is written, then change the wording of the law.
For more examples covered in class that allow you to define
yourself as a strict or loose constructionist, you may also use the
Fourth Amendment cases found in the following section.
When explaining these positions, be aware that you do not have
Should the flag be protected despite not being specifically
to pick a side, but identify where and when one tends to favor the
protected by the Constitution? Do you believe that RAV
strict or loose constructionist using the precedents to reinforce
Petitioner was poorly decided or do you agree with the majority in
your application of these concepts. In other words, if you find
the Morse case and favor the school? These put exceptions in
yourself undecided or undefined with a strict or loose
constructionist position, give an example of a precedent where
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you lean loose constructionist and one where you lean strict
constructionist.
When voting for presidential candidates (presidents appoint all
federal judge positions, including Supreme Court justices, when
the positions are created or become vacant), listen to what they
say regarding judicial appointments. You will tend to find that
Republican candidates will tell you they intend to appoint strict
constructionist judges in philosophy, as was the case of
President George W. Bush. His judicial appointments moved the
court more toward strict constructionist positions, requiring
more careful wording, or revisions of wording of the law, such as
the Ledbetter case.
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Section 2
Fourth Amendment cases
This section is designed to compliment the classroom
discussion on the Fourth Amendment. If you are seeking to use
the Fourth Amendment for the prompt on evaluating the criminal
justice system, please also read Section 5.
The Facts
The case presented in your packet is another fictitious case (like
restricted by the Fourth Amendment, as they are not part of the
government and can conduct procedures as they see fit.
The Law
When applying the Fourth Amendment, the facts must be
weighed against an interpretation of the Fourth Amendment.
Precedents can help you learn how the law was applied in the
the Jack Benny case) with real precedents. When reading over
past, but remember that all laws (whether they be amendments
this case, try to figure out what facts are important in the
to the Constitution, statutory laws passed by Congress,
summary.
executive orders given by the president or agency, or previous
As a reminder, in loco parentis, will be an important concept in
a public school setting. When reading the facts, you should
therefore be aware that the school has greater authority granted
to it based on past practices (not on the wording of the
Constitution). You must determine whether or not the doctrine of
in loco parentis is valid and, more importantly, when it is valid to
apply.
Finally, be aware that the facts took place in a public school
setting. This is important because private schools are not
rulings held by the court) are subject to interpretation. The
Fourth Amendment cases, therefore, can be very useful when
working on the part of the prompt establishing your judicial
perspective. When applying the law, do you find yourself leaning
more loose constructionist (allowing for a broad definition) or
strict constructionist (narrowly, or more literally, defining the law)?
United States Constitution, Amendment I (1791)
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon
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probable cause, supported by oath or affirmation, and particularly
unreasonable search and seizure is one of the most strict
describing the places to be searched, and the persons or things
protections found in the world. As the precedents bear out, a
to be seized.
balance needs to be struck between public safety and personal
When looking at the case and the precedents you need to
determine, 1) was the right of a person right to be secure in his or
her person, papers, or effects in question; 2) was the search and/
or seizure of student property conducted in an unreasonable
manner; 3) did the school have a warrant or probable cause; 4)
was their a specific or particular place in which the school was
searching?
Remember that having contraband items in violation of state or
school law can still be a punishable offense, but due to Fourth
Amendment protections, people have a right against
privacy wants. In a school setting, the balance needs is further
complicated by in loco parentis.
The Precedents
For your reference, the packet includes seven precedents. Five
of these apply to a public school setting, while two are very
recent ruling that applies to the general public and more broadly
defines a constitutional search (loose constructionist).
The case, New Jersey v. T.L.O (1985), is a landmark case in
redefining the powers schools have to conduct a legal search of
indiscriminate searches. This issue is addressed further in
students. The Fourth Amendment specifically requires probable
Section 5.
cause for a search to be deemed reasonable. When ruling T.L.O.,
the court invoked in loco parentis and provided the standard of
The Fourth Amendment was placed in the Constitution to protect
individual privacy from government intrusion. Privacy and having
a place of feeling secure is important to individuals across many
reasonable suspicion to school officials.
Probable cause is generally defined as having sufficient reason
cultures. Even in some of the more brutal police states you can
based on trustworthy facts to indicate a crime has been
find government officials knocking on a door, indicating in that
committed. This concept is very vague and is subject to
circumstance a respect for privacy. Victims of home invasion and
interpretation. A person committing a crime in plain site is
muggings often face difficulty adjusting back to a “normal” life
enough cause for a police officer to act. Someone behind a
because of this loss of security. The writers of the Fourth
closed door yelling for help after a gun shot is heard can easily be
Amendment wanted to guarantee against government intrusion
interpreted as probable cause for entering. But what about a
into personal privacy to the point where the protection against
person who looks suspicious because of behavioral
16
characteristics? What about a person who because of age,
gender, or race is statistically more likely to be a criminal?
Several precedents can help define where the courts have set
the limits of the grey areas of interpreting probable cause. In the
New Jersey v. T.L.O. (1985)
case of Illinois v. Gates (1983), the police acted on an anonymous
In the case of T.L.O., the student had violated a school policy
letter indicating certain people who were buying and selling drugs
when a teacher found the defendant smoking in a restroom. In
across state lines. The police obtained a warrant based on this
1980, when this incident took place, state laws did not forbid
evidence and the courts upheld the warrant based primarily on
smoking on school grounds. T.L.O. was only in violation of a
the fact that drugs were found. Whren v. United States (1996) is a
school policy. The vice principal, as a result of the teacher report,
case where the police searched a car in a high drug area that had
conducted a search of the student’s purse finding cigarettes and
remained at a stop sign for an extended period of time and then
rolling papers. The rolling papers, were the basis of justification
sped away, violating several motor vehicle laws in the process,
for further searching the purse. It was then found evidence that
after the driver saw the police turning toward him. The Supreme
T.L.O had possession of marijuana and was selling drugs to other
Court ruled 9-0 that the search did not violate Whren’s Fourth
students.
Amendment rights indicating that the facts were sufficient to
constitute probable cause.
A reasonable suspicion is considered legally to have lower
It is very important to note in this case that the fact that T.L.O.
was ultimately found to be both in possession of drugs and to
have been dealing is not justification for a violation of the Fourth
standards of evidence than probable cause. Consider the two
Amendment. The results of a search are not intended to
terms: suspicion and cause. A person who suspects has greater
determine if a search was constitutional. In fact the New Jersey
doubt than someone who has cause. Therefore, school officials
Supreme Court held that the vice principal had violated T.L.O.’s
can use less reliable sources and have broader search powers
rights and stated that because technically no crime had been
based on this precedent. Their power, as was ruled in Redding v.
committed (only school policy was broken), that there was no
Safford (2009), is by no means absolute. In that case, the court
cause to search the purse.
ruled that a strip search of a middle school girl was suspected of
hiding banned substances was unconstitutional.
Applying to Stict or Loose Constructionism
17
The United States Supreme Court in a 6-3 ruling ultimately
overturned the state court decision but by expanding the
meaning of probable cause to the standard of reasonable
suspicion when students are in school.
If you are a strict constructionist, as a dissenting opinion in T.L.O.
confirmed, you will object to this expansion of the meaning of
probable cause. If the Constitution was meant to say “reasonable
suspicion under certain circumstances”, then a strict
constructionist will likely argue that wording of the Constitution
needs to be changed through the amendment process. A person
who is more of a loose constructionist will argue that the
Vernonia v. Acton (1995)
The second precedent, Vernonia v. Acton (1995) clarifies the
school’s ability to conduct broader searches when reasonable
doubt is not present for a particular person. When looking at the
Constitutionality of this case, you need to determine your level of
comfort with how the ruling fits with the Fourth Amendment, see
how other cases helped establish precedent for this case, and
how the school is conducting the searches.
The Fourth Amendment specifies that a warrant must specify the
vagueness of the wording of the Constitution and terms like
persons, places, or items which are subject to search. In
probable cause leaves room for interpretations such as these.
Vernonia v. Acton, the searches, though random, are done
Even in On Liberty, John Stuart Mill states that certain people can
without any suspicion of cause of the individual being searched.
be denied liberty without applying his harm principle. Among
Instead, the court accepted the idea that a reasonable suspicion
those people are children.
of general drug use among the students as grounds for an
Therefore a loose constructionist can
argue that the search is valid without stretching the meaning of
individual search. The court upheld that a search to find drugs
the Constitution very much.
when there is a reasonable suspicion that drugs were being used
If you have a specific position on this case that you can define as
strict or loose constructionist, you may find it to be useful to
include in your prompt on rights and responsibilities. If you
believe that the standard laid down by the court denies a
fundamental constitutional right for public school students (or is
by students enrolled in the school is sufficient to conduct an
individual search. This is despite any fact showing a reasonable
suspicion of that particular individual engaging in any crime
(which was the held standard in general).
Both the majority and dissenting opinions did define the drug
an appropriate application of the Fourth), then you may want to
test for athletes as a search, which means the Fourth Amendment
include it in the prompt evaluating the criminal justice system.
has to be interpreted in this case. The majority opinion, however,
18
stated that school students required greater supervision, that the
view, you can take the side of the justices in any of these cases
result of the drug tests were not passed to law enforcement
and apply a more literal definition of the Fourth Amendment, such
officials, that student athletes already are expected to submit to a
as the dissenters in the Vernonia case.
physical, and that athletes who use drugs can endanger
themselves or others. In addition, it can be argued that
Commonwealth v. Cass (1998)
extracurricular activities are voluntary. Making a drug test a
Commonwealth v. Cass (1998) is a Pennsylvania Supreme Court
condition for participating in an extracurricular means that a
case which declared, in a 5-1 vote, that locker searches are not a
student who does not want to be subjected to a drug test does
violation of constitutional protections against unreasonable
not have to participate. The student’s right to an education (14th
search and seizure if a reasonable suspicion of a presence of
Amendment interpretation) would only be in question if the
drug activity in school. The court did rule that a search of an
student 1) failed the initial drug test, and 2) refused to accept the
individual student would still require reasonable suspicion that the
counseling and weekly drug tests but wanted to continue in the
student had possession of drugs, but that a reasonable suspicion
extracurricular activity. And as stated before, there was no
of usage was sufficient cause to conduct a general search of
involvement with criminal charges at this point.
student lockers.
Precedent favors the six justices who were in the majority. T.L.O.
Remember to take care when applying these cases in your
already established a lesser standard of reasonable suspicion and
prompt. Just because someone should not bring a drug or a
further defined the schools in loco parentis role. The 1990 ruling
weapon to school does not necessarily justify a search. Finding
in Michigan Department of State Police v. Sitz, allowed for drivers
drugs on someone who is searched without cause or suspicion
to be stopped at sobriety checkpoints. This case ruled that the
also does not justify the search. Be sure to understand your
inconvenience for the drivers was minimal and that the police only
position and be able to apply facts that support that position of
searched when drivers showed evidence of intoxication when
loose or strict constructionism.
answering a few questions while sitting in their cars.
The dissenting opinion in Vernonia stated that for the search to
Safford v. Redding (2009)
be legal, each student being tested had to show behavior that
Safford v. Redding (2009) is a case in which the Supreme Court
warranted suspicion. If you take a more strict constructionist
determined that a strip search of a 13 year-old girl had exceeded
the privacy rights of a student who was suspected of having
19
prescription ibuprofen on her person. Savannah Redding was
named as an accomplice for attempting to distribute prescription
level drugs in Safford Middle School. The accomplice, Marissa
Glines, named Redding had just been caught with drugs and a
razor blade. Redding had been identified by another student as
having made alcohol available to her classmates at her house and
was reported earlier that year as to have shown up to a school
dance acting disorderly. The principal believed he had a
reasonable suspicion to search both students. He had each girl,
in the presence of the female school nurse and a female
administrative assistant, strip to their underwear and then pull out
their bras in order to make sure they were not hiding contraband
in their underwear. The parents of Redding sued the school for
damages because they believed the school went too far and had
violated her daughters rights and humiliated her in the process.
The Supreme Court, in an 8-1 decision, ruled that there was
enough suspicion to search both Glines’ and Redding’s
backpacks and have them turn out their pockets, but that the
strip search was an unreasonable search. However, since there
was no clear precdedent or law stating how far a school could go
in this circumstance, the court protected the district from a
lawsuit this time. Now that this and all other public schools know
the outcome of this case, the court did say that a similar case
Florence v. Board of Chosen Freeholders of the County of
Burlington (2011)
Florence v. Burlington (2011) is the other case that is not related
to school, but which gives law enforcement greater search rights
as part of its standard procedures when processing people into
jail. Albert Florence was incorrectly listed in another county
records as having to fail to pay a fine (he had paid the fine) and a
bench warrant had been issued for his arrest. When it was
discovered he was a passenger in the family SUV, he was
arrested and brought to Burlington County jail for six days, where
he underwent two stip searches as part of the standard
procedure for processing people into jail.
The court ruled in favor of the county jail procedure, claiming that
it was necessary for security and could help apprehend someone
who is likely to commit a worse crime. The minority cited
evidence of an extremely small percentage of people who are
strip searched actually are found to be holding any contraband
items that may get into prisons.
This ruling in this case is an interesting contrast with Safford v.
Redding, as it involves institutional procedure for the purpose of
safety, but does not involve in loco parentis.
would allow the parents to sue for damages.
20
Section 3
Defining Government and Liberty using Mill
This section and the John Stuart Mill reading “On Liberty” are
“are greater gainers by suffering each other to live as seems
useful in both this unit and in Unit 2 when defining political
good to themselves, than by compelling each to live as seems
philosophy. The primary purpose of this section is to introduce
good to the rest.”
the fundamental role government plays and then state what is
necessary for that government to exist, according to philosopher
John Stuart Mill.
The reading itself is an excerpt from the introduction of Mill’s full
Mill’s statement that government’s purpose is to prevent people
from harming one another is also known as his harm principle.
The tricky part in applying Mill’s harm principle is to find a
collective definition of “harm.” Your personal definition of the
work on the subject of liberty. It embodies much of his core
harm principle and precedents from the cases presented in class
message in his writing.
(or researched on your own) is a significant portion to your first
Why do we need government? Mr. Mill, using language more
suited for his 19th Century audience, states fundamentally that
government is needed to keep people from harming one another.
After the primary function of preventing us from harming one
another is served, Mill questions any further use of government.
Anything more would be an unnecessary intrusion on individual
liberty, according to Mill. He states that it is appropriate to try to
convince someone that one may think is doing something foolish
or bad by trying to use social pressures, just not by imposing it
prompt.
There are clear examples of harm. A person who dumps toxic
waste in a on his or her property and a person who steps outside
his or her home in a crowded city with an automatic weapon and
fires the weapon indiscriminately are clearly threatening harm to
others. In this case, it is not only appropriate for a government to
intervene on behalf of the people, but it can also be necessary
for the government to make this act illegal before it is done in
order to prevent these actions.
through law and enforcing by government. He states that we
21
What about the person who decides to get multiple face and
What about someone, in exercising his or her liberty and free
body piercings. One could argue that the person is limiting
speech causes emotional harm to someone else? Where can we
employment options by getting the piercings, as some employers
draw the line on emotional harm?
may find piercings a distraction to customers and/or may view
the act as deviant. To make a law forbidding body piercings other
than what is dictated by social norms would seem to be better for
most people in terms of their financial future, but it violates Mill’s
harm principle. A person who chooses to get multiple piercing is
On the unit test or as an assignment, you will be asked to devise
your own definition of the harm principle using the First
Amendment precedent cases.
Was the act of burning the flag in gasoline (or kerosene, as in the
only potentially harming him or herself. It is therefore that
case of Texas v. Johnson) a dangerous enough act that it nullifies
person’s own choice and causes no significant harm to any other
Benny’s (or Johnson’s) right to free speech and burning the flag?
person than the person being pierced.
You may say that Benny had the right to burn the flag
Where the harm principle becomes questionable, and where the
political parties begin to be better defined is over what
constitutes “harm.”
Should drivers in Pennsylvania be required to own insurance?
Should they be required to wear seat belts? Pennsylvania’s laws
on these issues have restricted individual liberty in the name of
the common good. Is a person who gets in an accident and does
not carry insurance likely to cause harm to others as a result of
his or her choice not to be insured? Is a person who chooses not
to wear a seatbelt creating a likely physical or financial burden on
others?
What about helmet laws for motorcyclists? How is this the same
and how is it different than the seatbelt law?
fundamentally, but that the way he went about it was dangerous
and he forfeits his First Amendment right to free speech by his
specific method of burning.
R.A.V. v. St. Paul also is a useful precedent in clarifying the harm
principle. In his decision, both the majority and dissenting
opinion indicate that the method of speech may be regulated if it
affects the right of others. The court dismisses the notion of a
general law that restricts speech that, according to St. Paul’s law
“arouses anger, alarm, or resentment in others on the basis of
race, color, creed, religion or gender.” The court, in its decision,
set a limit on how broad the powers a government can have in
restricting speech.
When addressing the fight and breach of peace charge, you
need to determine why and/or if Benny is protected by the First
22
Amendment against those charges. This is a Constitutional case,
so both the Pennsylvania law and the breach of peace charge can
be found to be invalidated by the Constitution (more about this in
the next section).
You need to determine your definition of what constitutes “harm”
in the sense of when the government has a legitimate power to
infringe on liberty. In your prompt, establish from the precedents
your definition within the grey area of when the government is
allowed to intervene in the Benny case and when it is not.
23
Section 4
Types of law and federalism
As you read the cases provided on the First and Fourth
interpretation by the judicial branch. The Constitution may only
Amendments of the United States Constitution, clarification on
be changed by the amendment process, which requires those
what is the “law” may be needed. This section is designed to
whom it may affect to have final say in any changes made (3/4 of
outline different interpretations of the law, how the law is
the states are needed to ratify changes in the United States
structured in the United States, how the federal system
Constitution, while to ratify the Pennsylvania Constitution, a
functions, and the constitutional interpretation of the notion of
majority of Pennsylvania voters must ratify changes on the
supremacy of the law.
ballot). Wording in the Constitution may still be subject to
Part I: Common versus Civil Law traditions
Our common law tradition comes out of the British legal system.
interpretation by the judicial branch (such as how many days
constitutes a “speedy trial”) or may be further defined by
statutory law (see below). In cases where vague wording of the
Although we fought a revolution against the British in the 1700s,
Constitution leads to unintended or unpopular results, further
we retained what we liked of the British system and attempted to
amendment to the Constitution may be needed to guarantee that
improve upon what we did not. The common law tradition uses
precedent does not become court law.
precedents as the basis for rulings for future decisions. When
statutory laws are
The Amendments to the Constitution are good examples of the
common law tradition. There are vague words such as
“abridged”, “probable cause”, and “cruel and unusual
punishment” which are vaguely defined. The civil law tradition
Part II: Types of laws
Constitutional law - is the supreme law of the land. These laws
are the the rules set down in the Constitution and are subject to
found in the Bill of Rights can be located in the Seventh
Amendment, which gives an exact dollar number required to be
the minimum amount in a lawsuit before a jury trial is permitted.
24
The exactness gives greater clarity, but is more inflexible. Since
be done for reasons of national security and safety, reduction of
the Constitution is so hard to change, the $20 amount would be
short-term political influences, or due to the expertise needed to
the same in terms of cost of living to pennies in 1791 when the
determine the appropriate ruling (such as approval of drugs for
amendment was ratified. For this reason, the rights in the
over-the-counter use). Although the executive branch is given the
Constitution are set up to be more broad and vague in the
authority to make law, the legislative branch still has oversight
common law tradition and we find more of the civil law tradtion
and the power to change the law by enacting or altering statutory
being practiced in statutory law.
law.
Statutory law - is passed by a legislative body and are commonly
Court law - is interpretation by the court which define the
what we know as “laws”. This could be in the form of some sort
meaning of statutory and constitutional law. In the landmark
of restriction, penalty, or authorization for the executive to make
abortion case, Roe v. Wade (1973), the court ruled that the
rules and procedures for enforcing the law. Statutory laws build
Fourteenth Amendments due process clause protects a woman’s
on the civil law tradition. Although the executive branch has
right to an abortion on the grounds of her right of privacy
influence in shaping statutory law, in the United States the
(although the court did declare that the state does have the right
legislative branch has the power to create statutory law. The
to intervene when the unborn is viable). Court law which
legislative branch is elected by the voters and is more
interprets and defines the meaning statutory law can be
accountable to them than any other branch. All statutory laws are
overturned by more clarified statutory law. Court law which
available to be reviewed according to powers granted and laws
interprets and defines Constitutional law, may be nullified by
stated in the Constitution. Statutory laws may be deemed (by the
Constitutional amendment. For example, if the Constitution is
judicial branch) to be unconstitutional (in part or the whole law)
amended to say that life begins at conception, then the previously
and therefore are thrown out. They may be subject to a veto
described ruling on Roe v. Wade would no longer be valid. Court
when being passed or to interpretation of how they should be
law may also be nullified by a later court overturning a previous
enforced by the executive branch.
precedent. Brown v. Board of Education (1954), the case which
Administrative law - is authorized by statutory law, but rules and
procedures that are determined by an executive authority
led to the desegregation of public schools, overturned the
previous court decision Plessy v. Ferguson (1896).
(president, governor, commission, board, bureaucrat). This may
25
Common law - like the common law tradition mentioned earlier in
(confederation) more like the modern day European Union. Each
this section, common law is set up by precedent. It provides a
individual state was its own independent sovereign government
legal guideline for civil (non-criminal) cases. When statutory laws
that shared some power. By ratifying the Constitution, each state
do not cover issues in society, common law can be referenced.
agreed to delegate certain powers to the national government.
For example, if a person driving a car hits your car while you were
However, as stated in the 10th Amendment of the Constitution,
in it, you can sue that person. People in past cases have been
“The powers not delegated to the United States by the
awarded a certain amount of money for the damages and
Constitution, nor prohibited by it to the States, are reserved to the
personal injury. Attorneys and insurance companies often will
States respectively, or to the people.”
know how much compensation a person would get based on
common law practices of the past.
Part III: Federal government system
The federal government system is a division of government
between a national government and regional governments (states
or provinces) which retain a certain degree of highest authority
(also known as sovereignty). In the United States Constitution,
the federal system is divided constitutionally between the national
government (often referred to the federal government) and the
state government.
Article VI, Section 2 of the Constitution states that the United
States Constitution is the supreme law of the land, but that only
applies to powers delegated to the national government by the
states.
From 1787-1789, when the Constitution was being ratified by the
states, the individual states were part of an alliance
Prior to the ratification of the 26th Amendment in 1971, the
Constitution had no authority given to Congress to pass a
statutory law stating a voting age. The 10th Amendment clarifies
that this was a power reserved to the states. Pennsylvania’s
Constitution to this day states in Article VII, Section 1 that the
voting age in Pennsylvania is 21. Because of the supremacy of
the Constitution, however, this law is invalid unless the 26th
Amendment were to be repealed. The 21 year-old voting age is
still in the Pennsylvania Constitution, but no longer is enforceable
because it contradicts the higher United States Constitution.
Speed limits, drinking ages, public assistance, and education are
all matters which are technically reserved to state authority.
However, the national government has managed to wield power
over the states to change their laws using the threat of funding.
Even though the federal government has no authority over public
education, it has used interpretation of its authority to collect
taxes to “provide for...general Welfare of the Untied
26
States” (Article I, Section 8, clause 1 of powers of Congress). In
Congress was violating the 10th Amendment. The Supreme
turn, the national government then uses its power to provide
Court, however, ruled that states were not mandated to raise
assistance to the states in education, transportation, and other
ages (in fact Guam, the Virgin Islands and Puerto Rico did not
“general welfare” support to then tie conditions on the states to
raise their drinking age and lost highway funding as a result) and
guarantee additional funds from the national government. States
that the federal government was allowed to withhold funding to
are then subject to having funding withheld if they do not comply
pursue national goals.
with the wishes of the national government. The funding
withholding would require a significant increase in state taxes in
order to provide for the lost revenue for the states. As most state
governments would fear the loss in the next election from such
Federalism in the United States, in theory, has clearly defined
delegated (granted in the Constitution to the national
government, such as the power to declare war) and reserved
tax increases, there are few challenges to the federal government.
(kept by the states, such as driver licensing regulations) powers.
A classic example of the ability of the national government to use
tax in order to fund government operations at national, state, and
In addition, there are concurrent powers, such as the power to
power (getting the states to change the law) instead of authority
local levels so each level can fund their own programs. Through
(due to a lack of delegated powers) is the National Minimum
intergovernmental revenues of tax money given to the states from
Drinking Age Act of 1984. In 1976, 30 states had a drinking age
the national government to state and local governments (or from
that was lower than 21. A federal study on the problem of drunk
states to local government), the higher level of government has
driving and the formation of groups such as Mothers Against
asserted control beyond the delegated powers. Strict
Drunk Driving recommended establishing a national drinking age
constructionists are more likely to object to the use of
of 21. The federal government, however, has no delegated
intergovernmental revenues by the national government to
authority to raise the drinking age. In order to get the states to
pressure state and local governments to change their laws to
comply, Senator Lautenberg and his staff drafted the bill in 1984
conform with a national policy goal. Loose constructionists are
to withhold 10% of highway funding for states that did not raise
their drinking ages to 21. For states such as Ohio, this would be
a loss in highway money as high as $139 million in terms of
more inclined to want to use funding as a way to expand federal
powers.
recent budgets. South Dakota attempted (South Dakota v. Dole
[1987]) to sue the national government in court, stating that
27
Section 5
Criminal justice system
IN THIS SECTION
The prompt in Unit 1 is to have you evaluate the criminal justice system. For this
1. How easily can Constitutional rights be
used to prevent justice to be brought to
criminals?
section of the unit, the class will play the role of a jury in a mock criminal case to
2. How restrictive is the criteria used to
establish proof beyond a reasonable doubt
in a criminal case?
process, criminal rights, practices, and statistics will be given in class to provide a
3. Are our arrest and conviction rates
satisfactory?
4. Can you trust the trial by jury process?
gain a first-hand view of how the criminal justice system works in establishing guilt
beyond a reasonable doubt. To compliment this activity, presentation of the entire
greater understanding of the criminal justice system in the United States.
For the criminal justice system prompt, you are asked to first establish a position
on the system. Do you consider the American criminal justice system 1) too
lenient on criminals and/or too easy to avoid punishment, 2) too harsh or strict that
innocent people are harmed by the process, or 3) a fair balance between
5. How else does a criminal case operate?
protecting the rights of the accused and the need for justice on behalf of the
6. What is the difference in the standard of
burden of proof in a criminal versus civil
trials?
victims? When answering this question, you may choose any degree of these
7. Does the criminal justice system work in a
way that Americans are satisfied that the
system is working well?
section is to provide the necessary information about the criminal justice system in
options for each aspect of the system you are evaluating, but be sure to make a
specific statement that can be supported with evidence. The purpose of this
order to help you write a more effective prompt.
This section will help you prepare for each part of the prompt. It is broken into the
3 parts of the prompt: constitutional rights found in at least two amendments,
criteria for establishing a burden of proof in criminal cases, and addressing another
aspect of the criminal trial process. Underlying this section and the prompt is the
28
notion of whether or not a sense of justice is being achieved in
the United States and how well it is perceived.
Part I: Constitutional Rights and the accused
This part is designed to help explain criminal rights found in the
The Fourth Amendment states that a person has a right against
“unreasonable” searches and seizure of person or property
against the government. It places the burden on law enforcement
to either have probable cause (usually accompanied by needing a
warrant) or for a violation of the law to be in plain sight. In the
Constitution. The Constitutional rights regarding the rights of
United States any evidence which is seized and is determined by
accused criminals are found in the Fourth, Fifth, and Sixth
the courts to be a violation of the Fourth Amendment (no warrant
Amendments. In addition, you may also address the Writ of
or cause) is inadmissible as evidence. Other countries with
Habeas Corpus, found in Article I, Section 9 of the Constitution.
systems like the United States and with protections against
By linking to the amendments in this text, you will find also the
unreasonable search and seizure allow the evidence to be used
wording of the Pennsylvania Constitution with regard to similar
but will have some sort of penalty for law enforcement.
rights guaranteed.
Fourth Amendment
The authors of the Fourth Amendment feared a basic loss of
privacy. Privacy is considered an important psychological need
across different cultures. Having a strong individualistic culture in
A major influence in the construction of the Fourth Amendment
the United States, Americans value privacy greatly.
in reaction to what was viewed as excessive abuse of power by
the British government in the years leading up to the American
Consider privacy from the perspective of a person who has been
Revolution. Writs of Assistance, for example, allowed British
a victim of burglary. People who suffer this invasion of privacy
customs officials to search colonial merchant property without
often suffer psychological side effects (for more information, read
warrant or cause. Much of the United States Constitution is
this article). If burglary causes negative psychological effects for
written out of fear; fear of giving any one group or person too
a crime, consider who the citizen feels if a government were
much power. This fear also extends to giving national, state, or
constantly violating his or her privacy without a just cause.
local governments too much power. The Fourth Amendment,
therefore, may be criticized due to its strict wording and the
potential implications in criminal cases if evidence is deemed to
be seized in violation of this amendment.
To guarantee protection under the Fourth Amendment, a
defendant in a criminal case has the right to file a pretrial motion
to suppress evidence that they believe was obtained due to an
illegal search or seizure. If the motion is accepted by the court,
29
then the evidence is inadmissible and cannot be used in the trial.
If you prefer to defend the Fourth Amendment, as being a
This is known as the exclusionary rule is unique to the United
balanced protection, you may want to focus on statistics related
States.
to the exclusionary rule. To set up the basic argument, the New
Is the Fourth Amendment flawed?
When assessing rights for your prompt, you may choose to
York Times article may be useful. Studies of the success of
motions to suppress, such as this one, evidence on either the
Fourth or Fifth Amendments, place successful motions to
address the Fourth Amendment’s right against unreasonable
suppress evidence just over 1% of all attempts. This means for
search and seizure. As stated before, the Fourth Amendment
every 100 attempts at suppressing evidence, nearly 99 of them
was adopted as a reaction to what was seen be excess by the
are not successful.
British government. It therefore is well suited for debate over the
degree to which is protects rights of individuals.
If you want to argue that the Fourth Amendment has too great a
For arguing the Fourth Amendment does not protect the rights of
the accused enough, you can focus on precedents such as
Michigan v. Sitz, New Jersey v. T.L.O., Vernonia v. Acton, and
potential to protect criminals, you may want to emphasize the
Commonwealth v. Cass. In each of these rulings, exceptions
exclusionary rule that has been applied by court precedents. In
were made to the literal words to the Constitution, giving
the United States, the critical evidence that would be used to
government officials greater ability to search personal property
incriminate an accused criminal. Without that evidence, the
that what is typically allowed.
defense has an easier time of establishing a reasonable doubt
and achieving a “not guilty” verdict. The following New York
Times article may be useful to explain the unique nature of the
Fifth Amendment
The Fifth Amendment is packed with a number of rights. In
exclusionary rule. Paul H. Rubin also outlines the benefit to
popular culture, you are likely to be aware of the “right to remain
catching criminals with the elimination of the exclusionary rule in
silent” as covered the Miranda rights. The Miranda rights come
this editorial. To further support your argument, look for cases
from the following Constitutional rights.
where evidence suppression contributed to a defendant being
found not guilty or charges being dropped. A simple google
search using one or all of the following terms “evidence,”
“suppressed,” “not guilty” will yield plenty of cases.
• You have the right to remain silent. Anything you say or do can
and will be held against you in a court of law. (Fifth Amendment,
right against self-incrimination)
30
• You have a right to an attorney. If you cannot afford an
Those that argue that the right against self-incrimination is too
attorney, one will be provided for you. (Sixth Amendment, right to
protective may want to use the potential consequences to the
assistance of counsel)
court decision in the Seibert decision. If her confession of
An accused person may file a motion to suppress evidence if he
or she feels Fifth or Sixth Amendment rights have been violated.
The other possibility is that the case has to be retried with any
excluded evidence found to be in violation of rights. The
committing fatal arson is not admissible, then she would be able
to walk free. This could be combined with an assessment of the
standard of guilt beyond a reasonable doubt.
For those arguing balance or that protection does not go far
exclusionary rule (evidence gathered in violation of rights is not
enough can focus on the practice that law enforcement was
admissible) of the Fourth. Fifth, and Sixth Amendments can be
utilizing in the Seibert case demonstrates the importance of
argued to make it harder for guilty people to be brought to justice.
clearly protected rights. In arguing balance, the majority declared
However, the statistics show that motions to suppress are not
that the police violated the Seibet’s rights with their deliberate
very successful. If you choose to argue too many protections are
process of interrogation.
given, you will need to be careful on your defense of the position.
To help define the Fifth Amendment, the case Missouri v. Seibert
If you are seeking to argue too little protection is available for the
accused, the public nature of the arrest and how intimidating the
(2004) can be useful to apply a perspective on the balance
interrogation process can be both are useful to support that
between public safety and protecting rights. In this case, the
position.
police had a deliberate practice of interviewing suspects to try to
get a confession. When confession was achieved through
general questioning, a break was given. After the break, the
accused would be read his or her Miranda rights and then asked
to repeat the confession. The Supreme Court ruled 5-4 that the
police practice was in violation of the Fifth Amendment. Without
Seibert’s confession, the evidence of her committing fatal arson
might not have been strong enough for a conviction.
In the United States, there is a presumption of innocence for the
accused. However the arrest process is a public and can be a
degrading experience. A person who is arrested for a crime is not
considered guilty, however arrests are often made in public and
they may appear in local media. An example of this process is
described in the following essay. Once neighbors, co-workers,
employers, and/or clients see or hear of the public arrest, this
may affect one’s life negatively even though he or she may be
innocent of charges. Interrogations can also be very intimidating
31
and there have been cases where people who have confessed to
a crime were later found to be not guilty. A recent example can
be found in a January, 2012 article about police officers who
coerced a confession from a teenage girl over the death of her 13
• right to a jury of peers
• right to a trial in the location where the crime was committed
• right to challenge witness called to testify against the accused
month-old son.
• right to compel witnesses to testify for the defense
Another criminal right found in the Fifth Amendment is the
double jeopardy right. This right holds that once you have faced
All rights granted in the Fifth and Sixth Amendments may be
a trial (and were convicted, acquitted, or your trial was dismissed
waived by the defendant. Asking for more time on a criminal
with prejudice), then you cannot be tried for that crime again. In
case, means the defense will have to waive the right to a speedy
2003, Great Britain enacted a law that allows for an exemption of
the double jeopardy right in the case of murder. However, in the
United States people such as Casey Anthony and O.J. Simpson
can never be brought to trial again for the murders they were
found “not guilty” of committing. If arguing rights give too much
protection of the guilty, the British 2003 law (the United States
would need to amend the Constitution) can be used as an
example of how to ensure greater punishment for the guilty.
trial. An accused person can deny counsel or testify on his or her
behalf. Only the defense can choose to ignore rights, the
prosecution must respect the right
The right to an attorney is one that has evolved over time. It was
not until the ruling in Gideon v. Wainwright (1963) that this right
was applied to all criminal cases. Prior to that ruling, only capital
offenses (death penalty is involved) were guaranteed to be
constitutional protected throughout the United States.
The Gideon case expanded upon the past case of Powell v.
Sixth Amendment
Alabama (1932) in expanding the right to counsel for any type of
As mentioned with the Miranda Rights previously, the right to an
death penalty was involved, the accused has a right to adequate
attorney is a Sixth Amendment right. In addition to the right to an
access to attorneys. Powell and seven other African Americans
attorney, the Sixth Amendment allows an accused person to:
were sentenced to death for raping two White women. The men
• right to a speedy and public trial
charge. In the 1932 ruling for Powell it was stated that when the
were only given access to counsel right before the trial and were
given a one-day trial. Although the men were given counsel, the
32
Supreme Court ruled that counsel was not given enough time to
amount of time and the amount of time should be relevant to the
adequately prepare a defense. The Powell case was a capital
nature of the trial (murder cases, for example, would likely take
case, unlike Gideon.
longer than drug possession). If it is found by the court that the
Gideon, who was charged with petty larceny, was denied a
court-appointed attorney because Florida state laws at the time
followed the Powell standard. Since the charges against him
would not lead to the death penalty, Gideon was forced to defend
himself. From prison, Gideon brought a suit against Florida which
was heard in the Supreme court. The Gideon decision led to
prosecution took to long, the case is dismissed “with prejudice”.
A case that is dismissed with prejudice means that it can never
be brought to court again. This means a person, once having a
case dismissed, can never be tried for a crime even if that person
is truly guilty.
Most states, including Pennsylvania, have defined by law that
thousands of individuals convicted in Florida to be set free.
the speedy trial limit is 180 days. Each state has its own rules for
Gideon was given a retrial and was found not guilty of the
what happens after 180 days and any exemptions to make sure
charges against him.
justice is served while protecting the rights of the accused.
If you choose to use the right to an attorney for your prompt,
Powell offers evidence for the position that there needs to be
greater protection (or balance) for the accused, while Gideon may
be more effectively used to argue balance or how the guilty can
use their rights to avoid punishment.
Another right found in the Sixth Amendment, is a guarantee to a
speedy trial. The framers of the United States and Pennsylvania
constitutions only put in a right to a “speedy” trial, but did not
specify the time length. This has to either be defined by court
ruling or by statute.
In the United States Barker v. Wingo (1972) set out an
explanation that states the court will determine the appropriate
Pennsylvania, for example, requires law enforcement to release
any accused on a minimal bail if the trial has not started after 180
days.
The right to a jury of one’s peers has been decided in court law/
rulings that the government cannot try to systematically stack the
jury to being made up of one race, gender, or ethnicity. Jury
members may be dismissed for their opinions but not based on
ascribed status (such as race, age, gender).
The right to challenge witness allows the defense to test the
credibility of the witnesses in order to further its goal of
establishing a reasonable doubt in the mind of the trier of fact
(judge or jury). For this case, you may want to examine Giles v.
California (2008). The question in the case arises on whether or
33
not a call made by his girlfriend (whom he killed) complaining
Examples, such as the ones provided, help illustrate positions,
about domestic abuse, but not leading to any charges, is
but be sure to make supportable statements. If arguing that the
admissible as evidence against Giles. The court ruled in this case
system protects the criminals too much, it will be difficult to find
that since Giles did not kill her to silence her and there is no
statistical evidence to support this. If you take the perspective
criminal record for the incident, admitting it as evidence would
that it is best to err on the side of public safety will be more easily
violate his Sixth Amendment right to confront witnesses against
defended positions, then it arguments based on principle with
him was violated.
examples to illustrate will be more easily supported that trying to
The outcome of this case can be found in a Los Angeles Times
article which states that not only was his murder conviction
overturned by the court ruling, but the evidence of a phone
complaint to police was not allowed to be used in the trial. The
phone complaint became hearsay following the death of the
present statistics. On the opposing side, be careful not to
characterize police abuses as the norm. The cases illustrate the
potential of harm law enforcement officials may inflict on possibly
innocent people, but if data is lacking on frequency, then avoid
statements that attempt to quantify incidents.
girlfriend because Giles could not confront the witness and his
shooting of her could not be proven to be for the purpose of
silencing her (which would make her call admissable). A death
where Giles shot her six times and claimed self defense. This
Part II: Burden of Proof
In both civil (such as lawsuits) and criminal cases, the burden of
case is well suited to show an example where a person was freed
proof rests with the person bringing the case against the
because of Constitutional rights.
defendant. The difference is the standard. In civil cases, where
The article also mentions later that there was no precedent found
in over 200 years of American legal history that showed this type
imprisonment or a permanent criminal record is not an issue, the
standard of proof to side with the plaintiff (person filing suit) is a
of exemption to the right to confront witnesses. It therefore can
preponderance of evidence. This means the trier of fact (judge
be used to argue balance or be used to help define a strict
or jury) has to be more than 50% sure of the evidence against the
constructionist (or loose constructionist) position for the prompt
defendant.
on rights.
Take for example the Casey/Caylee Anthony murder case. In this
case Casey Anthony was accused of murdering her young
34
daughter Caylee. The evidence pointed to Anthony as the
deadlocked (hung) over the first degree charge. In order to
murderer of her daughter and no one else. Pulbic opinion was
convict for first degree murder, the jury had to be convinced that
also strongly in favor of conviction of Anthony. If a law suit was
Dunn planned to kill Davis with premeditated intent and be less
filed for wrongful death (as was done in the O.J. Simpson murder
than 50% sure that his actions were motivated out of a credible
case), there would likely be enough evidence to find Casey
threat (self-defense). This case is an excellent example of how
Anthony for having wrongfully killing her child. You will find,
difficult it may be to reach a verdict even when the facts weigh
however, that Casey Anthony was found not guilty in her murder
powerfully against the defendant. You can read more about this
trial. O.J. Simpson, the NFL star and actor who was found in civil
case by cliking here.
court to have wrongfully killed his ex-wife and her friend, also was
found not guilty in criminal court. This is due to the standard of
evidence to show guilt beyond a reasonable doubt.
Another high profile example that happened recently was the
In the prompt, there is an expectation in addressing the standard
of guilty beyond a reasonable doubt in criminal cases. There is
no absolute definition that would completely define what this
expression means, which ultimately leaves the standard to be
George Zimmerman trial. Zimmerman could not be found guilty
determined by the judge or jury. Even though there is no absolute
of either murder (intent to kill) or manslaughter (no intent to kill)
definition to the standard, there are several ways to narrow the
because the entire jury was conviced of at least a reasonable
definition so it is easier to understand. It is strongly
doubt. The fact that he shot and killed Trayvon Martin are clearly
recommended that you use the mock jury case covered in class
beyond a reasonable doubt, but circumstances in the case were
and in your packet in your prompt. It will not only help you define
enough to cause members of the jury enough doubt to not rule
a reasonable doubt, but will also give you an example of how a
out self defense.
consensus is reached by a jury on the meaning of the concept.
More recently was the case of 47 year-old Michael Dunn, a
To understand proof beyond a reasonable doubt, consider what
Florida man who shot into a van of teenagers after an argument
an unreasonable doubt would be and work back to reasonable.
over loud music. Dunn was charged with three counts of
These definitions are often better within the context of a case, but
attempted second degree murder for the surviving teens and first-
a starting point for defining reasonable helps. A Cambria County
degree murder for killing 17 year-old Jordan Davis. Dunn was
judge had once generalized this standard as follows: when one is
found guilty of all three counts of second degree murder, but was
reviewing the facts that the trier of fact (judge or jury) does not
35
pause and reconsider a relevant fact. Another way to look at a
article on the Japanese system (and also can be found in this
reasonable doubt is that if something is remotely possible, then it
similar article from the BBC), Japan’s 99% conviction rate and the
is appropriate to say that proof is beyond the reasonable doubt.
way the system runs brings individuals to justice but also
On the other hand, if you think the evidence makes a
imprisons many innocent people. This system favors those who
circumstance probable, then you have not reached the standard
want to argue public safety over individual rights, but does not
of being beyond a reasonable doubt. It is how strong the
represent the United States philosophy of protecting the rights of
possibility of something being true that is ultimately the line that
the accused as being presumed innocent.
has to be established by the judge or jury.
Using mock jury deliberation, an unreasonable doubt would be
Various statistics of federal or multiple states/counties in the
United States generally put the conviction rate in the United
that, given the facts, the mother of the defendant killed her
States in a range from the low 70s to mid 80s in percentage of
husband and the son was trying to cover for her. This is
cases that went to trial. This 70s-mid 80s percent does not
unreasonable because there is no evidence to show the mother
include two important groups, those who plead guilty and those
was home at the time of the killing. In fact, she stated that she
who are never charged with a crime.
was at work, a fact that would be easy to establish. Reasonable
doubts can be attainable in the mock case, depending on how
you interpret the history of violence by the stepfather, the validity
of battered child syndrome in this circumstance, and/or the
testimony of the girlfriend.
The question you must answer for this part of the prompt: is the
The Rasmussen study indicates that of the nearly 12 million
reported index crimes (willful homicide, forcible rape, robbery,
burglary, aggravated assault, larceny over $50, motor vehicle
theft, and arson), less than 2 million arrests were made. This
report covered about one third of the entire United States
population and half of all reported crime. Of the 54,000 felony
standard of proof beyond a reasonable doubt is too strict a
defendants in the study, a majority of them (61%) plead guilty to
standard, a good balance, or subject to putting too many innocent
either the felony charge or to a misdemeanor. Only 4% of them
people in jail?
went to trial and of that number that went to trial, 78% of those
There are several statistics that can be found on the
effectiveness of the jury trial process. One of the better statistical
surveys is found in a 2005 Rasmusen report. As we read in the
were found guilty (22% of those on trial were acquitted or 1% of
all 54,000). There were a large number (26%) of dismissals, but,
as indicated before, most were not dismissed on Constitutional
36
grounds. A majority of the trials were in front of a judge (bench
If you want to argue about how the system is in need of
trials) with a significant percentage (43%) being jury trials
improvement to protect the rights of the accused, you may look
(Raghav, Ramseyer & Rasmusen, 2005). If you were to research
for cases of individuals who were found to be wrongly convicted.
the difference between bench trials and jury trials, you will find
If you broaden your search to include racism in law enforcement,
higher conviction rates for bench trials.
you will find more examples. The recent cases of Andre Davis
Are you comfortable with the conviction rates and the process in
the United States?
Examples can be found to support any position on the criminal
justice system and burden of proof needed to convict. These
cases can be used illustrate a position, but not to establish airtight evidence of a trend. For that you will have to find reliable
statistics or cases to support or illustrate any claims. Casey
Anthony and O.J. Simpson provide good case examples of
accused people who were viewed by most as guilty but escaped
conviction. In both cases, the jury was not convinced beyond a
reasonable doubt of the accused (remember that someone who
and of Michael Morton after decades of imprisonment are
compelling stories.
For a balance argument, sticking more to statistics might be
easier. It is difficult to defend the freedom of the guilty or justify
the imprisonment of an innocent person on a case basis. Your
answer is your opinion and you are being assessed on your
support for that opinion. You can clearly find flaws in the
standard of resonable doubt, but consider the alternatives (fewer
potentially guilty people being convicted versus more cases like
Andre Davis or Michael Morton) when choosing an alterntative to
the balance argument.
is found not guilty means that the evidence against them was not
enough to convict, not that the person was completely innocent
of charges). O.J. Simpson and Casey Anthony high profile
exceptions to the majority of cases brought to trial. You may
Part III: Other aspects of the trial process
argue that these cases were a tragedy of justice, but you cannot
use them to alter the statistical evidence that shows a greater
If you have not chosen to take on the issue of motions to
conviction rate than lost cases. To argue a tougher approach will
suppress evidence (when evaluating rights in the first part of the
require you to realistically accept that more innocent people
prompt), you may address it in part III of the prompt. Otherwise
become endangered of being wrongfully convicted.
37
you will need to select from the jury selection process, the jury
person who is exactly like you, but applies to any adult living in
trial procedure, or the hung jury outcome.
the region under which the court has jurisdiction.
A. Jury selection
To serve on a jury in Cambria County, a prospective juror used to
be a registered voter. Jury selection started with a database of all
registered voters. From this population, a group is selected at
random. On October of 2012, the rules were changed so that
now jury selection comes from a combined list of driver licenses,
welfare rolls, and state income taxpayers. The change is
intended to try to get a more diverse pool of prospective jurors.
Since only about 80% of the population in the county are
registered to vote, then a significant number of younger people
and poorer people (who are less likely to register) were excluded
from jury duty.
Presenting an argument that the method of jury selection is
flawed to the point where guilty people may be put in jail, you can
address the means by which we select the prospective pool of
jurors. Under the voter registration roll system (which still exists
in many other places) tens of thousands of people in the county
never registered to vote. This may cause you to question if the
jury is really made up of one’s “peers”, as as much as 1/5 of the
adult citizenry is not available based on voter registration rolls. If
you wish to research more about voter registration, you will find
that certain characteristics (age, race) will be more likely to
register and vote. Please do note that “peer” does not mean a
When arguing balance, use the fact that the juror pool is drawn
from voter registration lists. More than 4/5 of the population is
represented in the pool and that is made up of those people who
bothered to register to vote. Registered voters, it can be argued,
have a stronger sense of civic duty and therefore are more likely
to be reliable in fulfilling their role as a member of a jury. This can
be used as an argument against the current system in Cambria
County, as jurors are now selected by a database that shows no
interest in fulfilling a civic duty. You may get more diversity out of
voters, but you also get people who have less interest and
potentially less understanding of how the system works. The jury
pool may be a more accurate reflection of the “peers” of the
accused (which is overrepresented by younger male minorities
whereas juries were often older and White), but if your life/future
was being debated, who would you want making that decision?
If you wish to argue the system is too easily manipulated,
present alternative criteria. For example, do you believe in an
educational (or government literacy) requirement for all
prospective jurors? Researching the most recent data actually
shows that conviction rates for bench trials (judges only) are
significantly lower than jury trials. An article published by the
American Bar Association suggests that the difference in the
conviction rates (which has over a 20% gap) may be attributed to
38
the fact that the judges are aware of any mandatory sentencing
accused or the victim), their connection the the criminal justice
guidelines and procedures, while jurors are not. This awareness
system (employment in law enforcement, judges, courtroom
of the minimum punishment, the author of the article presents
employees), their past record (criminal convictions), or hardship
with caution, may be a cause for judges to choose to find a
(battling cancer, death in the family). The jury commissioner’s
defendant not guilty. Much of the strict guidelines were declared
office has first say on excusing people summoned for jury duty.
unconstitutional (such as entering new evidence for determining
Following that, the judge will determine if someone is to be
the convicted criminal’s sentence even though it was not argued
excused. If you care to include this in your prompt, consider the
in the court case). If it is true that judges can be swayed by the
type of people who are likely to dismissed from jury duty and how
sentencing and you are arguing for “more punishment” then you
this further affects the group of “peers” that are supposed to
do not want to suggest juries should know any mandatory
make a decision that can affect public safety and the life of an
sentences the defendant faces with a conviction before they
individual.
reach a verdict. As juries often have higher conviction rates,
anyone arguing the system is too likely to let a guilty person go
free, then arguing about the selection process or some other
C. Challenges
aspect of the trial process will be more effective to present.
Another part of the jury selection process, after the initial
selection and screening are the challenges. The attorneys for
each side have the opportunity to dismiss prospective jurors out
of the pool of candidates who have been summoned for jury duty.
B. Being Excused From Jury Duty
Once the initial jury pool is selected, prospective jurors must fill
Most of us would likely favor a biased jury or judge, provided
that the bias was in our favor. Since that cannot be guaranteed,
out a questionnaire and may be excused from serving for various
an impartial jury is the goal that is sought by the attorneys on
reasons (doctors whose patients rely on them for life-saving
each side. They try to achieve this goal by asking questions of
surgeries, professors whose students have paid large amounts of
the prospective jurors, carefully listening to answers to identify
tuition in order to be properly educated). Others may be
potential bias. Attorneys for the prosecution may dismiss a jury
dismissed because of their connection to the crime (related to the
candidate for being too emotionally driven, shows bias against
39
law enforcement, or some other factor which might lead them to
(guilt beyond a reasonable doubt), the prosecution is provided the
quickly vote against the prosecution. Jury questioning can
opportunity to present evidence and witnesses both first and last.
include questions such as, “Do you find yourself crying when
The trial process essentially functions in a similar way you are
seeing a sad movie?”, in order to help gauge how a person may
asked to set up a standard essay in English classes.
react to an emotional situation in the courtroom. The defense
attorneys will look for answers to questions which show people
who are too quick to assume authority figures are right,
demonstrate high levels of prejudice, or some other factor which
could lead them to assume guilt without considering the facts.
During questioning of the jury pool, each side may dismiss a
1. Opening statements: Like the introduction in an essay, each
side will introduce the case with some background information
and narrow down to their main point (like the thesis in an
English essay). The goal of the opening statement is for the
attorney to guide the jurors toward what to listen for that
supports the position they are taking (guilty, not guilty) in the
certain number of potential jurors with the goal of getting the
trial. Like in an essay, each side is setting up their position, not
number down to twelve (in Pennsylvania), plus two alternates in a
presenting facts.
petit (trial) jury. The whole idea behind the challenge process is
not to get the twelve best jurors but the twelve who represent the
least worst candidates. The worst are eliminated by the attorneys
on both sides through the challenge process. What they are left
with are the people who were the least influenced by facts that
had already been released in the news, who had little or no
knowledge of the accused or victim, and/or who showed the least
amount of bias.
D. Jury Trial Process
The jury trial process is another aspect of the criminal justice
system which can be critiqued for the unit 1 prompt. The entire
process is designed to place a significant burden on the
prosecution to prove their case. Because of this burden of proof
2. Presentation of facts/evidence: This part of the trial is very
much like the main body of the essay. Each side gets a chance
to present evidence and testimony of witnesses or analysis of
experts. A well presented case will have relevant and strong
evidence and statements made. The prosecution, having the
burden of proof to show guilt beyond a reasonable doubt, will
present its case first. While witnesses are on the stand, the
prosecution will establish its case through questioning of the
witnesses in what is called direct examination. Once the
prosecution is finished the questioning of the witness, the
defense gets to ask questions to test the credibility of the
witnesses in what is called cross-examination. The goal of
the defense is not to prove anything to the jury, but merely
40
establish enough doubt in the mind of the jury as to achieve a
reasonable doubt.
The prosecution will then get a chance for
4. Deliberation: Following the closing statement, the jury must
then decide whether or not guilt beyond a reasonable doubt
rebuttal by asking follow-up questions after the defense is
was achieved by the prosecution. Prior to deliberation, the
finished with cross-examination.
judge will instruct the jury as to the meaning of the law and
Once the prosecution has finished calling up all witnesses and
remind the jury to consider all facts presented in the trial. In
presenting evidence, the defense is allowed to call up their
fact, the jury should not reach any opinion before reaching this
witnesses for direct examination. Following defense direct
phase. The jury meets and will discuss, vote, and attempt to
examination, the prosecution may cross-examine and then the
reach verdict.
defense will get to follow up with rebuttal questions. The
defense does not need to call up any witnesses nor present
anything in a criminal case. Although it is likely better to have
something, the defense only needs to tear down the
prosecution’s evidence and testimony. A lack of testimony,
particularly if the defendant refuses to take the stand (protected
by the Fifth Amendment), can not be assumed by a jury to be
an admission of guilt or even evidence against the defense.
After the defense calls their last witness, the prosecution may
recall their witnesses to restate and to try to address any doubt
established by the defense with their witnesses and evidence.
3. Closing statements: Each side will repeat their position (thesis)
and carefully summarize the key facts (or lack of sufficient fact)
that helps support that position. Conclusions are often the
weakest part of student essays, but if you look it as a closing
statement in a court case, you will want to your closing
summary to be strong and clear to bring the verdict that is
being sought.
5. In deliberation, the jury will discuss and weigh all evidence and
vote as many times as it is necessary to achieve a unanimous
decision. Pennsylvania law states all twelve jurors must agree
in criminal cases and 10 of the 12 must agree in civil cases.
For those who are arguing that the unanimous standard that
Pennsylvania has for criminal cases helps keep the guilty from
being punished may use the civil standard of 5/6 (or some
other proportion) as a suggested alternative.
6. Verdict: If all twelve jurors can agree, then they will return to
the courtroom with a verdict. For each charge they will either
say “guilty” or “not guilty”. A person found “not guilty” will not
be punished and will go free. The Fifth Amendment prevents
that person from ever going to trial for that specific criminal act
again. There have been a few exceptions that have been used,
but these are rare. In the early 1990s, for example, police
officers were caught on video beating someone they were
taking into custody for a crime. The man, Rodney King, was on
41
the ground and was outnumbered by the officers. The trial of
practice in the American legal system could be used to argue
the police officers ended in an acquittal (not guilty verdict) and
balance. this set off riots in the Los Angeles area where the incident took
If you are looking to argue that the process goes too far in
place. The United States Department of Justice decided to
harming innocent citizens, look for examples of how people’s
pursue this case as a violation of civil rights for Mr. King, as he
reputations are damaged by the public nature of the trial.
was Black and all the officers where White. Because it was a
Would you continue using a doctor, dentist, or some other
civil rights charges against government employees and not a
professional after finding out that the person was put on trial
criminal case, it was determined not to be a case of double
for rape, murder, or some other significant crime? What if that
jeopardy.
person were found not guilty but you were aware of the trial
A more common way for victims of a crime to try to achieve
and the accusations?
some sort of justice is to sue the person they believe to have
harmed them in civil court. In the United States, one may sue
someone who that person believed has committed harm to
him/her even though the accused person may have been found
not guilty in criminal court. In the mid 1990s, celebrity O.J.
Simpson went on trial for murdering his ex-wife and her friend.
The attorneys for Simpson were able to establish reasonable
doubt in the mind of the jurors, so he was found not guilty. The
families of the two victims, however, sued Simpson in civil
court for wrongful death. The civil court standard only requires
a preponderance of evidence (facts are more clearly on the
favor of one side over the other), so Simpson was found by one
jury to have wrongfully killed the two people he was earlier
found “not guilty” of murdering. In the American system this
allows the victim, or their families, to find some sort of
compensation for the loss or harm caused by others. This
7. Sentencing: Crimes in the United States often have ranges of
either jail time and/or fines. A judge may also impose an
alternative punishment (house arrest, restitution of cost for the
victim, community service, rehabilitation) as part of the
sentence or instead of jail time. The judge, therefore, has the
ability to determine the specific sentence of the person found
guilty. Sentencing is often done after a careful examination of
the person’s family situation, prior criminal history, ability to
afford fines or restitution, and other aspects of his or her life.
Starting in the 1990s, however, there was a significant push for
more “truth in sentencing”, “mandatory minimum sentencing”,
and “three strikes and you’re out” laws. These laws were
passed because a belief that judges on the whole were taking it
too easy on criminals and had too much power in deciding
punishments. Those laws typically apply to only a certain type
of crime, but take away much or all of the judges ability to
42
consider the facts of the convicted criminal’s history and
discretion), bench trials (by judge, not jury) have decreased in
background to determine a sentence. the percentage of guilty verdicts. It is significantly lower than
In essence, our society has moved from a more common law
jury guilty verdicts, suggesting that mandatory sentences may
tradition, where we trusted our judges to determine the most
have actually contributed to greater leniency among judges.
appropriate punishment (with, of course, certain limits), to a
civil law tradition, where the law determines a more specific
punishment regardless of the facts. If you wish to pursue this
Compare to the Japanese system
When approaching the prompt, you are welcome to compare the
aspect for your prompt, look for examples that support your
criminal justice system to that of the Japanese system. The
position. When you find cases where criminals received a
Japanese system has a much higher conviction rate (99%) than
lighter sentences or unequal sentencing because of different
that of the United States, but closer examination shows that it is a
judges, those examples will support the position that the
system that favors the prosecution over the accused. More
system works too much in favor of the criminal. When you find
people in Japan go to jail that are not guilty for a crime they did
cases where either the facts of the case does not seem to
not commit. A more strict system, however, may lead to lower
warrant the punishment or if a third strike is a minor offense
crime rates overall. The article presented in the packet showed
and puts a person who back into jail for a long time, those
that the law (and the way the law is either enforced or not
examples will support the idea that the criminal justice system
enforced) favors the prosecution over the rights of the accused.
is going too far in trying to punish criminals. A balanced
argument can come from several options, including the idea
Consider using the Japanese system for any position on the
that only some types of crime trigger the “truth and
prompt, as it can be used as either evidence of the result of going
sentencing” and “mandatory sentences” or that the “three
too far, support for the need to maintain balance, something to
strikes” laws usually start with a major crime. Also a balanced
aspire to keep the country safer, or even an extreme to be
argument may be presented in terms of how the criminal justice
avoided while increasing the ability to punish more criminals.
system is not entirely made up of mandatory sentences or
discretion of the judge, but a blend of the two. A fact that should be considered, if you are choosing to take on
E. Sense of justice?
Underlying the prompt is the question of how the criminal justice
the sentencing process, is that since laws have been enacted
system provides a sense of justice in society. The purpose of this
to make sentences more strict (and less up to the judges
subsection is for you to assess how what you have learned about
43
the crime and punishment in the United States and compare that
except around where they live, then the total affect on crime rates
to perceptions either presented in class or researched on your
should be lower. Something must be creating a disconnect.
own. This will help give you context as to your positions you
have established in the prompt.
To help explain this apparent disconnect, take your own survey.
Study the front page of a newspaper for a week or the headlines
A defensible position will require a general understanding of the
of the local news. It will likely be filled with crime reports. This is
data involved. You can present the numbers as they are reported
supported by an Infobia article on crime reporting. Look at the
or look for what is not shown in the numbers. Since this part of
television line-up on any given week. How many crime dramas
the prompt weighs least in your grade, be sure to put most of
exist? Shows like the C.S.I. and Law and Order have franchise
your emphasis and effort on the other parts.
shows in addition to their originals. Other shows, such as
Essentially the data provided (and what you will likely find from
additional research) is that Americans over the last few years and
even the last few decades more and more will answer that crime
is getting worse in the United States. However, when asked how
bad crime is locally, a significant majority answer that there is less
crime locally. Crime rates in the United States since the 1990s
N.C.I.S., are commonly aired and expanded to other versions of
the same show. How may crime dramas affect perception of
crime rates in the country? For more on this subject, consider
reading this sociology article on the impact of crime shows on
public perception.
If you carefully look at the data, you may ask questions or find
and even in the last few years with a poor economy have actually
contrary evidence than what was presented (be sure to use
been falling.
reliable sources). You may find regional and ethnic differences as
As for punishment, the United States has the highest
incarceration rate (imprisonment) in the world. Conviction rates,
as mentioned before, have ranged in the low 70s to the mid 80s
in percent. Just taking the statistics, there appears to be a
disconnect between perception and reality. Americans think
crime is getting worse, when there is no data to support it. On
top of that, if a majority of people say that crime is getting worse,
well. For example, low-income urban areas have significantly
higher crime rates than wealthy urban areas. Rural communities
have much lower rates than urban communities. Younger people
are more likely to be victims and criminals. Males are significantly
likely to be more the victim and the criminal in most violent crimes
(rape being the exception).
When looking at crime rates as a whole in the United States, you
are not likely to find evidence of a rise in unreported crimes
44
(which would affect the rates), rather the opposite. However, you
may ask with regard to the conviction rates, if the statistics are
affected by a willingness to take a case to court. How many
criminals are not brought to trial because they did not plead guilty
(which is how most criminals are actually sentenced) and the
prosecution believed they did not have enough evidence to take
the case to trial?
You may use your findings to help introduce or wrap up your
prompt position overall. Otherwise your view of the sense of
justice will be an in-class activity that will coincide with
preparation of this prompt.
45
Section 6
Constitutional Rights
This section contains parts of both the United States and
Political Powers. Section 2. (PA)
Pennsylvania Constitution. Amendments I, IV, V, and VI (as well as
All power is inherent in the people, and all free governments are founded on their
applicable Pennsylvania Constitution sections which can be used for
authority and instituted for their peace, safety and happiness. For the
the prompts. Amendments marked with an * are the ones which are
to be prepared for the Objection! assignment. Please note that only
the Amendments (in italics) and NOT the Pennsylvania Constitution
advancement of these ends they have at all times an inalienable and indefeasible
right to alter, reform or abolish their government in such manner as they may
think proper.
sections (in regular text) are to be used on the Objection! assignment.
Amendment I (US)*
Preamble (US)
We the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Religious Freedom. Section 3. (PA)
blessings of liberty to ourselves and our posterity, do ordain and
All men have a natural and indefeasible right to worship Almighty God according
establish this Constitution for the United States of America.
to the dictates of their own consciences; no man can of right be compelled to
1790 & 1838 Preamble (PA)
attend, erect or support any place of worship or to maintain any ministry against
We, the people of the commonwealth of Pennsylvania, ordain and establish this
his consent; no human authority can, in any case whatever, control or interfere
constitution for its government.
with the rights of conscience, and no preference shall ever be given by law to any
Current Preamble (and 1874) (PA)
religious establishments or modes of worship.
WE, the people of the Commonwealth of Pennsylvania, grateful to Almighty God
Religion. Section 4. (PA)
for the blessings of civil and religious liberty, and humbly invoking His guidance,
No person who acknowledges the being of a God and a future state of rewards
do ordain and establish this Constitution.
and punishments shall, on account of his religious sentiments, be disqualified to
hold any office or place of trust or profit under this Commonwealth.
46
Freedom of Press and Speech; Libels. Section 7. (PA)
INFLUENTIAL DOCUMENTS: State constitutions, English Bill of Rights (applied to
The printing press shall be free to every person who may undertake to examine
Protestants only)
the proceedings of the Legislature or any branch of government, and no law shall
ever by made to restrain the right thereof. The free communication of thoughts
Amendment IV (US)*
and opinions is one of the invaluable rights of man, and every citizen may freely
The right of the people to be secure in their persons, houses, papers,
speak, write and print on any subject, being responsible for the abuse of that
liberty. No conviction shall be had in any prosecution for the publication of papers
relating to the official conduct of officers or men in public capacity, or to any other
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
matter proper for public investigation or information, where the fact that such
supported by Oath or affirmation, and particularly describing the place
publication was not maliciously or negligently made shall be established to the
to be searched, and the persons or things to be seized.
satisfaction of the jury; and in all indictments for libels the jury shall have the right
Security From Searches and Seizures. Section 8. (PA)
to determine the law and the facts, under the direction of the court, as in other
The people shall be secure in their persons, houses, papers and possessions from
cases.
unreasonable searches and seizures, and no warrant to search any place or to
Right of Petition. Section 20. (PA)
seize any person or things shall issue without describing them as nearly as may
The citizens have a right in a peaceable manner to assemble together for their
be, nor without probable cause, supported by oath or affirmation subscribed by
common good, and to apply to those invested with the powers of government for
the affiant.
redress of grievances or other proper purposes by petition, address or
remonstrance.
INFLUENTIAL DOCUMENTS: State constitutions, response to British laws such as
INFLUENTIAL DOCUMENTS: State constitutions, English Bill of Rights of 1689
the Navigation Acts
(only extended to Parliament), Maryland colony Tolerance Act, Pennsylvania’s
Colonial Charter and Great Law
Amendment II (US)
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
Right to Bear Arms (PA)
Section 21.
The right of the citizens to bear arms in defense of themselves and the State shall
not be questioned.
Amendment V (US)*
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use,
without just compensation.
47
Inherent Rights of Mankind. Section 1. (PA)
Article I, Section 9 (US)
All men are born equally free and independent, and have certain inherent and
The privilege of the Writ of Habeas Corpus shall not be suspended,
indefeasible rights, among which are those of enjoying and defending life and
unless when in Cases of Rebellion or Invasion the public Safety may
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
Initiation of Criminal Proceedings; Twice in Jeopardy; Eminent Domain.
Section 10. (PA)
Except as hereinafter provided no person shall, for any indictable offense, be
proceeded against criminally by information, except in cases arising in the land or
naval forces, or in the militia, when in actual service, in time of war or public
danger, or by leave of the court for oppression or misdemeanor in office. Each of
the several courts of common pleas may, with the approval of the Supreme Court,
provide for the initiation of criminal proceedings therein by information filed in the
manner provided by law. No person shall, for the same offense, be twice put in
jeopardy of life or limb; nor shall private property be taken or applied to public
use, without authority of law and without just compensation being first made or
secured.
require it.
No Bill of Attainder or ex post facto Law shall be passed.
Rights of Accused in Criminal Prosecutions. Section 9. (PA)
In all criminal prosecutions the accused hath a right to be heard by himself and his
counsel, to demand the nature and cause of the accusation against him, to meet
the witnesses face to face, to have compulsory process for obtaining witnesses in
his favor, and in prosecutions by indictment or information, a speedy public trial by
an impartial jury of the vicinage; he cannot be compelled to give evidence against
himself, nor can he be deprived of his life, liberty or property, unless by the
judgment of his peers or the law of the land. The use of a suppressed voluntary
admission or voluntary confession to impeach the credibility of a person may be
permitted and shall not be construed as compelling a person to give evidence
against himself.
Prisoners to be Bailable; Habeas Corpus. Section 14. (PA)
INFLUENTIAL DOCUMENTS: State constitutions, English Bill of Rights (1689),
All prisoners shall be bailable by sufficient sureties, unless for capital offenses
English Petition of Right (1628), Magna Carta (1215)
when the proof is evident of presumption great; and the privilege of the writ of
habeas corpus shall not be suspended, unless when in case of rebellion or
Amendment VI (US)*
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
invasion the public safety may require it.
Ex Post Facto Laws; Impairment of Contracts. Section 17. (PA)
No ex post facto law, nor any law impairing the obligation of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.
been previously ascertained by law, and to be informed of the nature
INFLUENTIAL DOCUMENTS: State constitutions, English Bill of Rights, English
and cause of the accusation; to be confronted with the witnesses
Petition of Right, Magna Carta
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence.
48
Amendment VII (US)*
AMENDMENT XV (US)*
In suits at common law, where the value in controversy shall exceed
Section 1.
twenty dollars, the right to trial by jury shall be preserved, and no fact
The right of citizens of the United States to vote shall not be denied or
tried by a jury, shall be otherwise re-examined in any Court of the
abridged by the United States or by any State on account of race,
United States, than according to the rules of the common law.
color, or previous condition of servitude-Section 2.
Amendment X (US)*
The Congress shall have the power to enforce this article by
The powers not delegated to the United States by the Constitution, nor
appropriate legislation.
prohibited by it to the States, are reserved to the States respectively, or
No Discrimination by Commonwealth and Its Political Subdivisions. Section
to the people.
26. (PA)
Neither the Commonwealth nor any political subdivision thereof shall deny to any
Natural Resources and the Public Estate (PA)
Section 27.
The people have a right to clean air, pure water, and to the preservation of the
natural, scenic, historic and esthetic values of the environment. Pennsylvania's
public natural resources are the common property of all the people, including
person the enjoyment of any civil right, nor discriminate against any person in the
exercise of any civil right.
INFLUENTIAL DOCUMENTS: State constitutions, English Bill of Rights, English
Petition of Right, Magna Carta
generations yet to come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
Amendment XIX (US)*
The right of citizens of the United States to vote shall not be denied or
AMENDMENT XIV (US)*
abridged by the United States or by any State on account of sex.
Section 1.
Congress shall have power to enforce this article by appropriate
All persons born or naturalized in the United States, and subject to the
legislation.
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which
Prohibition Against Denial or Abridgment of Equality of Rights
shall abridge the privileges or immunities of citizens of the United
Because of Sex. Section 28. (PA)
States; nor shall any State deprive any person of life, liberty, or
Equality of rights under the law shall not be denied or abridged in the
property, without due process of law; nor deny to any person within its
Commonwealth of Pennsylvania because of the sex of the individual.
jurisdiction the equal protection of the laws.
49
Amendment XXIV (US)*
Section 1. The right of citizens of the United States to vote in any
primary or other election for President or Vice President, for electors
for President or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United States or any
State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Amendment XXVI (US)*
Section 1. The right of citizens of the United States, who are eighteen
years of age or older, to vote shall not be denied or abridged by the
United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Article VII [Elections], Section 1. (PA)
Every citizen 21 years of age, possessing the following qualifications, shall be
entitled to vote at all elections subject, however, to such laws requiring and
regulating the registration of electors as the General Assembly may enact. 1. He
or she hall have been a citizen of the United States at least one month. 2. He or
she shall have resided in the State ninety (90) days immediately preceding the
election. 3. He or she shall have resided in the election district where he or she
shall offer to vote for at least sixty (60) days immediately preceding the election,
except that if qualified to vote in an election district prior to removal of residence,
he or she may, if a resident of Pennsylvania, vote in the election district from which
he or she removed his or her residence within sixty (60) days preceding the
election.
50
Section 7
Judicial terms
To better understand the criminal and civil justice systems in the
Contact with the legislative branch is more rare and will likely
United States, as well as to help you prepare for the second
take some initiative from you. Although your members of
round of Objection! (or the quiz alternative), this section provides
Congress and General Assembly, school board members,
you with definitions and explanations of different concepts that
borough council members (Westmont, Southmont) or township
relate to the judicial process.
supervisors (Upper Yoder) do on occasion go to the public to talk
Each term that is part of the Objection!/Quiz assignment will be
in bold.
In your lifetime, you will have dealings with the executive
branch. In fact, this section and assignment are one of those
times. This assignment has be given by a teacher (who is
enforce state and local education laws) in a school setting (which
is part of the school district’s executive branch), using resources
provided by the school. Enforcement of the law does not always
mean punishment or arrest. Enforcement of the law can include
the services you get from the government, whether they be a
check from Social Security, putting out a fire in your
neighborhood, maintaining a national park, providing books for
you to read in a public library, or instruction in a classroom. Your
contact with the executive branch in each level of government
will likely happen on a daily basis.
with those they represent, it is often you that must approach or
find those who make your laws. The legislative process and your
influence will be presented in Unit 3.
The judicial branch is where else you will likely have direct
contact. At some time, you might find yourself in the court room
as a witness, juror, defendant, employee, or plaintiff. The reason
that put you in that courtroom may be criminal law or civil law
cases. A criminal law case would involved something in which
the public order was violated with the intent of consequence of
harming (or endangering) someone else. Criminal cases may
involve different degrees of severity and therefore be given
stronger or weaker penalties for violating the public order. A
felony is the most severe type of crime. It involves the taking of
a life or causing severe harm to others. Murder, arson, armed
robbery, aggravated, and rape are all examples of felonies.
51
These types of crimes will have the most severe penalties (longer
heard for the first time there. If one loses a case, he or she may
prison sentences, death penalty). A misdemeanor is still
try to appeal the case. Certain courts have jurisdiction to hear a
considered a serious crime, but not as life threatening. Burglary,
challenge to a ruling of a previous case in appellate courts.
simple assault, possession of a small quantity of illegal drugs,
Military courts have their own authority and separate rules for
and trespassing may all be defined as misdemeanors.
how a defendant may be treated. Congress has authorized
A case that is considered a civil law case is one in which a
special courts also for terror suspects connected to the 9/11
terrorist attacks of 2001 and the al-Qaeda organization. The
person or group must settle an issue between another person or
courts have exclusive jurisdiction. When several courts may be
group. Civil law cases include lawsuits, contract disputes, child
the starting or next appellate court, then they are said to have
custody and divorce hearings. Although there may be some
concurrent jurisdiction.
statutory laws which help govern civil cases, it is likely that a civil
case is guided more by the British common law tradition than by
statutory laws. Common law uses past cases (precedents) to
help determine the appropriate outcome for a current case.
In criminal cases, the government acts as the plaintiff (the party
that files suit in civil cases) and is called the prosecution.
Criminal law cases must go through a much more strict process
There might be a limit on how much someone can sue a doctor
than civil cases. If a major felony has been committed, often a
for malpractice, for example, but the amount that the plaintiff
grand jury must be called. The grand jury hears the facts of the
may be awarded will be determined by the judge or jury in the
case and must vote to determine if there is enough evidence to
case. How much to award the person/group filing the suit, or
go to trial or not. Grand juries are made up of local citizens who
plaintiff, will be guided by the outcomes of past cases that are
have been called to jury duty service. Because they are called for
similar. The defendant is the person or group that is the target of
only a select type of felony, grand juries are not common.
a the complaint, dispute, or lawsuit (or crime, in criminal cases).
The type of courtroom you find yourself in will be based on the
When a grand jury is not required by law, the prosecution must
file information with a judge. Information is when the facts of
jurisdiction of that court. Jurisdiction is the type of case or
the case are presented to a judge and that person determines if
geographic area in which the government has authority. In terms
there is enough evidence to go to trial. If the judge determines
of court jurisdiction, it is the type of case which can be heard.
there is enough evidence, then the case can go to trial.
Some courts have original jurisdiction, meaning cases can be
52
The Sixth Amendment guarantees a right to a jury trial. The jury
who hears a case being tried is the petit jury and will determine
the outcome of the trial. The petit jury is the jury you typically
see in courtroom dramas in books, TV shows, and in the movies.
In a major felony case, such as a first degree murder case, it
would be the grand jury who hears evidence and determines if
there is enough evidence (“true bill” or “no bill”) to go to trial and
the petit jury that would hear the case to determine if the person
on trial were guilty or not guilty.
53
Section 8
Unit 1 Terms & Concepts
UNIT 1 TERMS
17. in loco parentis
1. power
18. liberty
2. authority
19. when liberty can be denied
3. politics
20. 4th Amendment
4. political science
21. probable cause
5. government
22. reasonable suspicion
6. how our society views power
23. justice
7. role of the judicial branch
24. reasonable doubt
8. constitutional law
25. preponderance of evidence
9. statutory law
10. amendment
11. 1st Amendment
12. symbolic speech
13. facts
14. law
15. precedent
16. court opinion
54
Unit 2 concepts:
Chapter 3
Purpose and
function of
government
types of government
political philosophy
political spectrum
political parties
Applicable PDE standards:
5.1.12.
What type of government is the most tolerable?
Which is the least? What is the fundamental nature
of people and the appropriate role of government?
Unit 2 presents different views on government and
political philosophies to enable the reader to better
define what type of society he or she wants to live in
and political affiliation(s) with which he or she aligns.
Unit 2 Prompt: Choose between the following
OPTION #1: Defining your own political philosophy
In unit 1 we discussed that John Stuart Mill statements on the primary purpose of government. In this unit we are looking at Thomas Hobbes, Jean Jacques Rousseau and
other philosophers to help add to different prespectives of the nature of people and the appropriate role of government.
Define yourself politically (make a brief
introduction defining yourself) and elaborate in the following sections:
1.
Compare (alike and different) your positions to the beliefs of Hobbes and Rousseau (as generally stated in class) on the nature of people and the role of government,
with examples.
2.
Identify where you fall or where you place yourself on the political spectrum, clarifying why you fit where you fit with specific examples and policy policy positions
that place you there. Provide at least 4 views/positions to define yourself.
3.
Identify the political party(ies) with which you most closely identify or match. Explain where you match, where you do not match (or if it is a perfect fit, elaborate on
additional issues that show a fit) and how important philosophy is for voting/governing/political parties (in other words, take parts 1 & 2 and say how important it is
for a political party to adhere to a philosophy versus controlling government).
4.
Comment on how we covered in class either strengthened, weakened, or reinforced your own political philosophy.
OPTION #2: Political Philosophy in modern American politics
In unit 1 we discussed that John Stuart Mill statements on the primary purpose of government. In this unit we are looking at Thomas Hobbes, Jean Jacques Rousseau and
other philosophers to help add to different prespectives of the nature of people and the appropriate role of government.
Define another politically (make a brief
introduction of who you will identify) and elaborate in the following sections:
1.
Identify one or several different prominent political leaders. State background of each and what political position (or influence) each has.
2.
Identify positions of the individual(s) to the beliefs of Hobbes and Rousseau (generally stated in class) on the nature of people and the role of government, with
examples.
3.
Identify one major and one minor political party which matches one of the people introduced. Clarify where this person does and does not match with each party
idenftified and state with which party that person best fits.
4.
Identify where a person you identified falls on the political spectrum, clarifying why that person fits with specific examples and policy policy positions that place him/
her there. Provide at least 4 views/positions to define yourself.
56
Section 1
General terms - for Objection
OBJECTION ASSIGNMENT - CREATE A
QUIZ OR OBJECTION GAME INCLUDING
THE DEFINITION/APPLICATION OF THE
FOLLOWING CONCEPTS.
1. autocracy
2. oligarchy
3. republic
A. Types of government (1-5)
In one of your prompt options you will be required to compare the advantages and
disadvatages to the different types of government. In order to achieve this goal,
you will need to make sure you know the definition of each type of government.
autocracy - type of government where unlimited or significant political power is
held in the hands of one person. Although there is no pure example of an
autocracy, governments that are more autocractic in leadership include: North
4. democracy
Korea, Nazi Germany under Hitler, Stalisit Russia. Vladimir Putin is an autocratic
5. theocracy
leader in Russia who is using his position of power to make Russia more
6. libertarian
autocratic.
7. authoritarian
oligarchy - type of government where power is held by a limited group of people.
8. reactionary
Autocracies are often supported by of oligarchic elites, who are often placed (or
9. conservative
kept) in those positions due to loyalty to the autocrat. Oligarchies are similar to
autocracies but power is held by a committee or group of people. China is an
10. moderate
oligarchy, where party elites determine who runs the government and who is
11. liberal
allowed to run for office. Besides China, Myanmar (Burma) and Fiji are both ruled
12. revolutionary
by military juntas, which are a form of oligarchy. Historically, the Soviet Union after
Stalin and ancient Sparta are older forms of oligarchy.
57
republic - also known as a representative democracy, a republic
the decision up to elected officials. In Pennsylvania, the most
is a form of government where voters choose representatives to
common ballot measures are amendments to the Pennsylvania
govern on their behalf. Governments we typically call a
Constitution. According the the Pennsylvania Constitution, an
“democracy” are technically this form of government, as we do
amendment must first be proposed by the state legislature. It is
not make laws directly, but indirectly through elected and
then announced in media across the state for review and a revote
appointed representative. The election process is where the
following the next election. It is then announced again in media
element of democracy enters in, but elected and appointed
and then placed on the ballot for ratification. Democracies are
officials are not required to support the majority of those who
also sometimes practiced in the United States in small towns
placed them in office. Frequent disregard to the majority or a
when decisions are made in town halls, but more commonly
large, well organized minority may cost them their position. The
found on the ballot issues.
United States, Canada, Germany, Australia, India, and most other
governments with a multiple political parties and elected
governments are republics. Countries such as Iran, Cuba, China,
and North Korea all could become republics simply by taking
away the power of the party or religion that monopolizes the
government.
theocracy - a theocracy can technically be applied to an
autocracy or an oligarcy. Theocracy literally means “god/gods”
and “rule by”. Since a god or gods rule through human
representatives, it is actually rule by a religious elite. This is why
the type of government is technically an autocracy or an
oligarchy. The Vatican, for example, is an indpendent country
democracy - literally meaning “the people” and “rule by” a true
that is ruled by a Pope. The Pope acts as the head of state for
democracy has the people making policy directly. There is no
life (or resignation, as in the case with Pope Benedict XVI) which
current national example of a democracy in the world today, but
you appear to be autocratic in nature. Since the Pope is elected
historically the ancient Athenian culture once practiced a limited
by a group of cadinals, the Vatican may also be referred to as an
form of democracy (becasue a minority of the population actually
oligarchy. In truth, it has elements of both. Iran refers to itself as
was qualified to participate). In the United States today
a theocratic republic. Citizens as young as 15 have the right to
democracy is practiced every time we place an issue on the
vote, but candidates must first be approved by the religious
ballot. For example, in 2012 176 ballot measures were placed on
leaders that subscribe to a particular view of Shia Islam.
the November 6 national election in 38 states. These measures
Although the Iranian constitution is very similar to the United
allow the voters to choose or change the law instead of leaving
States, the control over who runs the country remains in the
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hands of religious leaders, not the people. The distinct difference
authoritarian - believes in using the government as a tool to apply
between a theocracy and autocracy/oligarchy is the moral
his or her philosophy. This type of person is also referred to as a
structure that is behind the theocracy. Oligachies and
populist. An authoritarian seeks to use the government to
autocracies are both formed by force and/or threat of force. The
translate their vision of society into law. This helps explain how,
leaders there obtain and maintain power with the threat of force
although Adolph Hitler and Joseph Stalin are traditionally labeled
behind them. A theocracy may also have gained power and use
as opposing each other philosophically, their ruling style was
force, but the religious element of the basis of power gives them
nearly identical.
the ability to claim divine right to rule. People may accept rule in
a theocracy therefore not because of fear of force by a
C. Traditional political spectrum (8-12)
government, but out of either fear or respect of the religious
legimitacy of those who utimately control the government.
how each views on the “system.” By system, it is meant how the
B. Libertarians and Authoritarians (6-7)
In a traditional political spectrum, you will typically see the
When defining these terms, they will be stated in terms of
society and government should be managed.
revolutionary
liberal
moderate
conservative
reactionary
terms listed in part C. What that political spectrum lacks is the
reactionary - is a person who seeks to return the “system” to a
fact that people on opposite sides might use similar methods to
status it was in the past. A reactionry may want to eliminate the
rule over the population. This is where a distinction between
income tax in the United States, for example, as it was added by
libertarian and authoritarian can help.
Constitutional amendment in 1913.
libertarian - believes in limited government authority. A libertarian
conservative - is a person who resists change and seeks to
believes that government should be limited to what it is mandated
maintain the current order. “Conservatives” in the United States
to do. Anything beyond that would threated individual freedoms
as applied to Republicans or to social conservatives often take a
and government’s purpose is to guarantee freedom unless a
reactionary or authoritarian view. A conservative would want to
person’s action causes harm to others. John Stuart Mill
stop the reforms to the health care system that has been labeled
expressed this opinion in his essay “On Liberty”.
“Obamacare”. If the law is implemented, that person who would
seek to undo the law would be labeled a reactionary.
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moderate - a moderate is technically a moderate liberal. A
taking more moderate steps toward capitalism and away from
moderate would seek gradual or partial change within the system.
communism.
Obamacare, although seeking change, uses much of the existing
health care system and modifies many aspects slightly. This bill
has been labeled as radical or liberal, but many elements are fairly
moderate.
liberal - a liberal seeks change but still within the current system.
Liberals want to change society, but not break down the current
system entirely. Reforms in the past, such as adopting the Social
Security system or federal government welfare programs altered
the influence of the federal government on our lives, but did not
change the nature of family, business, government, religion, or
anything significant within society. These programs required
more taxes and affected our financial liberty (Social Security takes
12.4% of income and forces us to save it for our own retirement).
A liberal version of Obamacare would likely have altered to a
single payer
revolutionary - seeks to change the system. A revolutionary
wants to adopt a new system or new structure. Marixism
(Communism) is considered a revolutionary theory because it
alters many of society’s institutions (family, religion), transforming
the structure of society to fit an ideal set of relationships set down
by Marx and others. The societies which are labeled
“communist” today actually are totalitarian states which were
seeking (and often forcing) revolutionary change, but are now
60
Unit 3 concepts:
Chapter 4
Policy
Making
Process
Starting with a quick review of how policy is made,
this unit will focus on how policy is shaped. You will
be presented with several examples of how policy is
influenced, with most of the emphasis on the
lawmaking process. In addition, you will have the
opportunity to see where and how you may try to
influence this process.
Applicable PDE standards:
5.1.12.
Section 1
General terms - for Objection
OBJECTION ASSIGNMENT - CREATE A QUIZ OR
OBJECTION GAME INCLUDING THE DEFINITION/
A. Executive branch
APPLICATION OF THE FOLLOWING CONCEPTS.
The executive branch has both the authority and the responsibility to carry out
1. bureaucracy
the laws. The greatest powers of this branch is in how much it can choose to
2. characteristics of a bureaucracy
carry out laws (or refuse to enforce laws) enacted by legislative branch, how
3. independent regulatory commissions (what makes
them independent)
influence it can have over public opinion/party leadership in order to convince
4. ordinance/executive order
much rule making it has been granted by the legislative branch, and how much
lawmakers to pass laws granting it greater authority.
5. celemency
6. impeachment
7. why the House of Representatives is more
representative of the people than the Senate
8. purpose/function of a committee
9. powers of a committee chair
1. Bureaucracy - is the complex organization that is designed to make sure laws
get carried out. This ranges from defending out shores from invasion, to the
TSA agents who screen airline passengers and baggage to prevent people from
harming others while flying, to delivering the mail, to making sure your elderly
relatives get their Social Security checks on time. Enforcing the law includes
capturing and housing criminals, as well as building and maintaining roads. 10.filibuster
11.gerrymander
2. Characteristics of a bureaucracy - hierarchical nature, formal rules, and job
12.bill
specialization.
13. resolution
1) Hierarchical nature - bureaucracy is not democratic. It is a top-down
14. concurrent resolution
structure that is designed to make sure laws are carried out. Democratic
15. joint resolution
16. rider
checks are built into the bureaucracy (we elect the people at the top and
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bureaucracy is subject to legislative oversight). To illustrate this
infectious diseases, as you would not want a physician fixing
concept, think of the military. Commanders do not ask for a
the plumbing in a government building.
vote on military action, they give commands which are to be
obeyed. Because of this hiearchical nature, if the bureaucracy
is placed under the command of a single person (president,
governor, mayor), a larger bureaucracy can mean greater
power for that single person.
2) Formal rules - also sometimes negatively known as “red
tape”, formal rules are designed to make sure that everyone
gets equal treatment and that there is a paper trail to follow to
make sure the bureaucracy can be held accountable for its
3. Independent regulatory commissions, and why it is beyond
direct presidential control. The bureaucracy is made up of
different agencies and organizations. In the United States
government, there are departments, independent agencies,
and indpendent regulatory commissions (there are others
which include AMTRAK and the Post Office), but the class will
focus on largest 3 types of organizations. Independent
regulatory commissions are beyond direct presidental
actions with evidence to support. This can be something as
control because 1) the president has no firing power of the
simple as requiring hall passes and having a sign out sheet to
leaders of the commissions, 2) the terms of commissioners are
leave a classroom. There is now a record of a student leaving,
as long as or longer than the president’s, 3) the commissions
with time records of departure and return, a stated reason, and
are only subject to Congressional oversight/report to Congress.
a document that shows that the student left with the
A president does have appointment powers, but that is subject
permission of the teacher. On the federal level, it may be filling
to Senate confirmation and sometimes is limited, such as the
out tax forms to show records of income and that you are
by party affiliation (the Federal Elections Commission’s
paying what is expected of you.
commissioners may not be made up of a majority of one party).
3) Job specialization - because the bureaucracy is designed to
The reason for creating independent regulatory commissions is
enforce the laws, specialists need to be hired to fulfill that role
to prevent these organizations from being influenced by the
who are well qualified. A scientist or physician may be
exeuctive head (president, governor) or acting on behalf of a
employed to conduct research for the National Institutes of
political party. These organizations have great influence over
Health. The General Services Administration will need an
the economy (Federal Reserve), free and fair elections (Federal
employee with a skilled plumber. The Internal Revenue Service
Elections Commission), regulating the financial markets
will need to hire people with accounting degrees and
(Securities and Exchange Commissions). They often have the
experience. You would not want an accountant working with
long-term goals of the country as their focus and by removing
63
them from executive/party influence, they will not focus on the
carrying out the sentence. Since the executive branch is
short-term aims of gaining or maintaining power which is often
responsible for carrying out/enforce the law, it has the power to
the case of the legislative and executive branches due to
refuse to carry laws out (within certain limits). A president or
Congressional power structure operating in a two-year cycle.
governor has the power to pardon (individual) or grant amnesty
4. Ordinance/executive order - is the executive ability to make
rules and regulations, as authorized by the legislative branch.
Provided the executive branch is given the authority to make
regulations/rules (enacted by Congress and upheld by courts, if
challenged), it acts as law. The defense department, for
example, recently changed the rules on allowing women into
combat roles. Because the president and the secretary of
defense have the authority of commanding the armed forces,
the executive branch can declare regulations. Since the
bureaucracy is characterized by job specialization, specialists,
such as scientists can determine the safety and effectiveness
of drugs, for example, much better than elected officials.
Ordinances and executive orders have force of law only if
Congress does not decide to enact legislation or refuses to
fund or authorize the order. An example of this refusal was
when President Obama signed his first executive order closing
the facility built to house Al Qaeda and Taliban detainees at
Guantanamo Bay. Congress refused to authorize this order, so
it remains open.
5. Clemency - is an executive power over the judicial to either
excuse a person from serving a senence or postpone/delay the
(group), which means the person is freed and forgiven of his or
her crime. A chief executive also can postpone the carrying
out of a sentence (reprieve) or allow someone to leave early
without serving a full sentence for a crime instead of a pardon
(commute a sentence). For example, President George W.
Bush was asked to grant a pardon for his vice president’s chief
of staff, I. Lewis Libby, who was convicted of a crime.
President Bush did not believe that Libby was worthy of a
pardon, so he instead commuted his sentence which allowed
him to not go to jail, but his criminal record still stood.
B. Legislative branch
6. Impeachment - is the process of removal from office by
Congress for committing a crime while in office. Any high
ranking member of the executive branch or the judical branch
(judge) may be impeached (technically members of the
legislative branch may impeach someone in their branch, but
this has only been attempted once, and each house can
remove a member of their own house without going through
impeachment). This requires majority of the members of the
House of Representatives to impeach an offical, but then that
person must stand trial in the Senate and be found guilty. To
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date, only eight judges have been removed from office by
written bills from wasting time in Congress and help improve
impeachment, while two presidents (Andrew Johnson and Bill
the likelihood of passing bills. Members of Congress also often
Clinton) have been acquitted in the Senate.
try to sit on committees which match their own skills and
7. House v. Senate: which is more representative of the people?
The House of Representatives was designed to represent the
interests or ones that might be more concerned to the people
they represent.
people, while the Senate was designed to represent the states.
9. Committee chair powers - the committee chair is selected by
This can be seen in 2 factors: term length (2 years in the House
the leaders of each house. These individuals wield significant
versus 6 years in the Senate) and number of people
power, as the individual committee chair may allow a bill to
represented. The 435 members of the House of
come up for consideration or refuse to allow legislation to
Representatives represent fewer people than members of the
come up for a vote in committee. This power can prevent
Senate do on average. For example, in Pennsylvania has 18
legislation from passing and executive/judicial appointments
members of the House of Representatives and only 2 senators.
from being confirmed if certain committees are needed to pass
Each senator represents all 12.8 million citizens of
legislation.
Pennsylvania and has 6 years to serve in office. This means
that if a senator casts and upopular vote in his first year or two,
he or she has the opportunity to regain popularity over several
years. Each of the 18 members of the House represent about
700,000 people in defined portions of the state. House
members have just over a year to run in a primary election after
taking office. This means that if a member of the House makes
upopular votes, there is less time to recover.
8. Committee purpose and functions - specialized groups in
10. Filibuster - is a legislative tactic in the Senate where a
member of the Senate (or members working together) can stall
the legislative process indefinitely. If a group of Senators, while
debating legislation, hold the floor in a deate, they can pass the
right to speak on the floor for the entire 2 year term of the
Senate and can prevent any legislation from being passed.
Filibusters do not happen in the modern age (except if a lone
member of the Senate wants to get some attention) because a
credible threat of a filibuster alone will cause the leadership in
Congress are created to allow members of Congress to gain a
the Senate to not allow that legislation to come up for a vote.
degree of expertise on types of issues which Congress must
Filibusters may prevented if 60 members of the Senate agree
address and to work out the legislation to prevent poorly
to vote cloture, which places a time limit on speaking.
65
11. Gerrymander - is the process by which Congressional
districts are drawn in a way to favor a particular political party.
Every 10 years, following the census, new districts for national
and state offices must be drawn for the elected officials who
are to represent equally sized population areas within a state
(US House of Represenatives, PA Senate, and PA House).
These districts can take on unusual shapes in order to try to
load up one district with the opposition party candidate, in
order to make the surrounding districts more likely to be voted
are not considered by the president because they only conern
the internal workings of Congress.
15. Joint resolution - is a bill of a temporary or unusual nature
(emergency spending) or a proposed amendment to the
Constitution. The temporary/unusal bill does go the president,
but proposed amendments go to the states for ratification if
they pass both houses with a 2/3 or greater majority.
16. Rider - is a piece of legislation that is added to another. Often
in favor of the party who controls who is drawing the borders.
times this tactic is used to try to get something passed that
This helps explain why Pennsylvania, which has a majority
would likely die on its own. Because presidents seldom use
Democratic population and voted to elect President Obama in
the veto power, a rider may be a way to get an unpopular piece
2012, has 13 Republican members of the House of
of legislation passed by adding it to something needed or more
Resentatives, but only 5 Democrats.
popular. Since presidents cannot line-item veto parts of
12. Bill - is a type of legislation which is intended to be made into
a law. Bills must be passed by both houses of Congress and
signed by the president (or override a veto with 2/3 of both
houses). This is the most common type of legislation.
13. Resolution - is either a rule for or a statement by a single
House of Congress. For example, the filibuster and cloture
legislation, they may be willing to sign a bill into law even
though there are objectional parts. Raising the speed limit
above 55 was done through a rider on a highway
appropriations bill in the 1980s, for example. President Reagan
did not support allowing states to raise speed limits, but he did
not want to veto the whole bill that provided important money
for roads and bridges, so he signed it into law with the rider.
rules are exclusive to the Senate. The House of
Representatives passed, by resolution, a per-member 5 minute
time limit on speeches. Resolutions do not go to the president.
14. Concurrent resolution - is like a resolution, but would be a rule
for or statement by BOTH houses of Congress. Again, these
66