text study guide #4: How do the 5th through 8th Amendments protect rights within the judicial system?
NAME: ____________________________________
JUSTICE UNDER THE LAW: THE "CRIMINAL AMENDMENTS"
DIRECTIONS: Read Lesson 3 in the WE THE PEOPLE text ( pages 182-187) and answer the questions below in the spaces provided:
1. In the FEDERAL court system (but not all state systems), anyone who is to be tried for a crime must first be indicted. What is the basis of an indictment under the 5th Amendment and how is it obtained in the federal system?
* probable cause (both federal and state systems)
* grand jury indictment (and in around 20 states)
2. The purpose of the DOUBLE JEOPARDY provision of the 5th Amendment is NOT to protect a guilty person; what then is its purpose?
* to ensure due process for an accused by forcing the government to "have all their ducks lined up" before taking a person to trial -- designed to protect the innocent
3. List and briefly describe the 8 limitations the 6th Amendment places on the government:
a. jury trial
b. assistance of counsel
c. compulsory process for witnesses
d. impartial jury
e. speedy trial
f. public trial
g. notification of charges
h. notification of facts behind the charge (basis for probable cause)
4. What is the difference between an ADVERSARIAL COURT SYSTEM as opposed to an INQUISITORIAL COURT SYSTEM?
* adversarial -- contest between competing counsel representing the government and the defendant, with the judge as "refereree"
* inquisitorial -- panel of judges investigating the charges and making factual determinations on the weight of the evidence; counsel advises the parties and obtains and questions witnesses
5. Does the right to counsel apply ONLY to the criminal TRIAL? Explain.
* No; there is a right to counsel in civil proceedings as well, but at the expense of the parties
6. What are two controversies surrounding the right to counsel?
* at what point in the process does the right attach
* for what level of charges the right comes into play
7. Briefly, how are the rights of the 6th Amendment enforced?
* defense counsel has the responsibility to submit requests/raise objections, or the right is deemed waived
8. The 8th Amendment puts limits on the power of both judges AND legislatures -- explain.
* limits punishments that can be imposed by law, as well as the authority of judges to assign punishments
9. Why does the 8th Amendment provide the right to be free on bail pending trial? Is it an absolute right?
* presumption of innocence
* not an absolute right -- balanced against the need of society for protection
10. What does it mean to be released from jail on one's own "recognizance" and when is it typically used?
* release without bail
* when it is a minor charge with little threat that the accused won't appear for trial
11. What determines whether or not a fine is "excessive" under the 8th Amendment?
* whether or not the fine is proportionate to the offense
12. What is the problem involved in determining when a punishment is "cruel and unusual" under the 8th Amendment?
* by definition, determining what is "cruel and unusual" is subjective
13. The U.S. Supreme Court has never held that the death penalty is unconstitutional, but it has struck down the use of the death penalty in some cases. Explain how the latter can happen, if the death penalty is constitutional and has always existed in the United States.
* criteria developed is not only whether punishment "fits the crime" but also whether the punishment "fits the person"
14. What PRECEDENT was established by the Supreme Court's 1972 decision in Furman v. Georgia regarding the death penalty?
* What might otherwise be a punishment that is not "cruel and unusual" can be ruled unconstitutional if the procedures for determining the punishment violate due process
15. Why have the courts been flooded with appeals of death sentences since 1976, when the Supreme Court upheld (in Gregg v. Georgia) state death penalty laws four years after the Furman decision?
* over 40 states have restored the death penalty, with differing standards for when the punishment can be assigned
16. Since the death penalty is constitutional, why is Maine allowed NOT to have a death penalty?
* Bill of Rights sets a "floor" for rights; with a federal system, states can provide for more "rights" than those included under the Bill of Rights
JUSTICE UNDER THE LAW: THE "CRIMINAL AMENDMENTS"
DIRECTIONS: Read Lesson 3 in the WE THE PEOPLE text ( pages 182-187) and answer the questions below in the spaces provided:
1. In the FEDERAL court system (but not all state systems), anyone who is to be tried for a crime must first be indicted. What is the basis of an indictment under the 5th Amendment and how is it obtained in the federal system?
* probable cause (both federal and state systems)
* grand jury indictment (and in around 20 states)
2. The purpose of the DOUBLE JEOPARDY provision of the 5th Amendment is NOT to protect a guilty person; what then is its purpose?
* to ensure due process for an accused by forcing the government to "have all their ducks lined up" before taking a person to trial -- designed to protect the innocent
3. List and briefly describe the 8 limitations the 6th Amendment places on the government:
a. jury trial
b. assistance of counsel
c. compulsory process for witnesses
d. impartial jury
e. speedy trial
f. public trial
g. notification of charges
h. notification of facts behind the charge (basis for probable cause)
4. What is the difference between an ADVERSARIAL COURT SYSTEM as opposed to an INQUISITORIAL COURT SYSTEM?
* adversarial -- contest between competing counsel representing the government and the defendant, with the judge as "refereree"
* inquisitorial -- panel of judges investigating the charges and making factual determinations on the weight of the evidence; counsel advises the parties and obtains and questions witnesses
5. Does the right to counsel apply ONLY to the criminal TRIAL? Explain.
* No; there is a right to counsel in civil proceedings as well, but at the expense of the parties
6. What are two controversies surrounding the right to counsel?
* at what point in the process does the right attach
* for what level of charges the right comes into play
7. Briefly, how are the rights of the 6th Amendment enforced?
* defense counsel has the responsibility to submit requests/raise objections, or the right is deemed waived
8. The 8th Amendment puts limits on the power of both judges AND legislatures -- explain.
* limits punishments that can be imposed by law, as well as the authority of judges to assign punishments
9. Why does the 8th Amendment provide the right to be free on bail pending trial? Is it an absolute right?
* presumption of innocence
* not an absolute right -- balanced against the need of society for protection
10. What does it mean to be released from jail on one's own "recognizance" and when is it typically used?
* release without bail
* when it is a minor charge with little threat that the accused won't appear for trial
11. What determines whether or not a fine is "excessive" under the 8th Amendment?
* whether or not the fine is proportionate to the offense
12. What is the problem involved in determining when a punishment is "cruel and unusual" under the 8th Amendment?
* by definition, determining what is "cruel and unusual" is subjective
13. The U.S. Supreme Court has never held that the death penalty is unconstitutional, but it has struck down the use of the death penalty in some cases. Explain how the latter can happen, if the death penalty is constitutional and has always existed in the United States.
* criteria developed is not only whether punishment "fits the crime" but also whether the punishment "fits the person"
14. What PRECEDENT was established by the Supreme Court's 1972 decision in Furman v. Georgia regarding the death penalty?
* What might otherwise be a punishment that is not "cruel and unusual" can be ruled unconstitutional if the procedures for determining the punishment violate due process
15. Why have the courts been flooded with appeals of death sentences since 1976, when the Supreme Court upheld (in Gregg v. Georgia) state death penalty laws four years after the Furman decision?
* over 40 states have restored the death penalty, with differing standards for when the punishment can be assigned
16. Since the death penalty is constitutional, why is Maine allowed NOT to have a death penalty?
* Bill of Rights sets a "floor" for rights; with a federal system, states can provide for more "rights" than those included under the Bill of Rights