Chapter 9- Constitutional Defenses

DOUBLE JEOPARDY
- 5th Amendment says no person shall be subject for the same offense to be twice put in
jeopardy of life or limb
o Prevents a second prosecution for the same offense and a second punishment for
the same offense
- The first jeopardy occurs once jurors are selected and sworn in, or the first witness has
been sworn in a bench trial
- Exceptions: can be retried if first trial ended in mistrial, or if charges were dropped before
jeopardy attaching, or wins a conviction appeal
- Cant be retried on a more serious offense
- Can still correct a sentence on appeal
- Can be prosecuted twice for same offense by different sovereigns
SELF-INCRIMINATION AND IMMUNITY
- Also in 5th Amendment: no person shall be compelled in any criminal case to be a witness
against himself
- People dont have to testify if they could incriminate themselves
- Immunities granted to compel witnesses to testify
- Transactional immunity: shields witness from prosecution for all offenses related to his or
her testimony
- Use immunity: prohibits government from using witnesss testimony or any evidence
derived from that testimony to prosecute the witness
o Independently gained evidence can be used against witness
- Some states require trial judge to approve immunity
- Witness can waive right, but cant selectively testify
- Applies to civil, criminal, and administrative proceedings
DUE PROCESS AND EQUAL PROTECTION
- 5th amendment allows everyone due process of law, meant to constrain federal govt
- Discrimination based on meaningful criteria such as mens rea are legal
o Those based on race, religion, gender, etc are violating
- Substantive due process
- Procedural due process
o Principle of legality: requires that criminal laws and punishments be written and
enacted before an act may be punished
Unfair to announce an act is illegal and increase punishment after act was
committed
VAGUENESS AND OVERBREADTH
- Vagueness doctrine: a criminal law may be unconstitutional if it does not clearly say what
is required or prohibited, what punishment may be imposed, or what persons may be
affected
o Also, statutes that permit discriminatory enforcement are void
o Used in vagrancy laws

Overbreadth doctrine: a law will be declared void for overbreadth if it attempts to punish
speech or conduct that is protected by the Constitution and if it is impossible to eliminate
the unconstitutional part of the law without invalidating the whole law

EX POST FACTO AND BILLS OF ATTAINDER

- Ex post facto law: one that makes an act illegal after the act was taken, increases the
punishment and severity of a crime after it occurred, changes the procedural rules so as to
increase the chances of conviction after the crime occurs
o Changes that benefit the defendant may be taken
- Bill of attainder: a legislative act pronouncing a person guilty without a trial
FIRST AMENDMENT AND RELIGION
- 1st amendment: freedom of press, religion, speech, peaceful assembly
o Only protects federal govt, but 14th extends to states
- Some religious practices may be regulated by Supreme Court
- Distinguishing between fraudulent and bona fide religious practices is difficult
o Must be determined that defendant is asserting a religious belief, not a personal or
philosophical
How many followers of the religion there are
How long has defendant been practicing
How important is the act to the religion
FIRST AMENDMEN AND SPEECH
- Fighting words and those which create danger are prohibited
- Slander and libelous statements prohibited
o Content- based
- Speech also regulated b/c of its time, place, and manner of being expressed
- Expression of ideas also protected, such as picketing
- Crimes are enhanced if motivation was the victims race, religion, color, etc
PRIVACY AND OTHER UNENUMERATED RIGHTS
- Is there an inherent privacy right in the Constitution?
o Yes, has source in 1st, 4th, 5th, 9th, 14th amendments
- Still regulates activities like abortion
- Allowed to travel within the US but travelling abroad is regulated
- Any time a statute conflicts with a constitutionally protected activity, the statute will fail
unless the govt has a compelling interest