Vatterott OKC Paralegal Studies

We don't teach you what to think. We teach you HOW to think.

Constitutional Defenses

The purpose behind a Constitutional defense is to make sure that the defendant is treated in a fair manner.

Where do we get Constitutional defenses?  We get them from four places.

  1. The US Constitution (hence the name)
  2. Bill of Rights
  3. State constitutions (again, hence the name)
  4. Federal and state laws

So, let’s take a look at a few of them.  Remember – you need to check your state constitution and your local laws during your research process for any criminal case or criminal law class assignment.  If you are taking criminal law, check with your instructor to determine if you should use the statutes the book lists OR if you should look up the statutes in your jurisdiction.

Freedom of Religion

This can occur when the goals of religion conflict with specific criminal laws.  The court has the responsibility of balancing religious rights with the right of the state (health, safety, and welfare of society).  Remember that our government is comprised of all three types of political theories.  One of those theories is the sociological theory which looks at the good of society as a whole first and foremost.  That doesn’t mean that religious rights may be trampled on; it does mean that if someone believes they possess the religious right to kill people that they aren’t allowed to do it.  It is a detriment to society.  Oh, and it’s murder.

Freedom of Expression

This is one of our basic rights.  We all have the right to express ourselves.  Any law that interferes is thoroughly examined by the courts.  The state must show a compelling state interest in order to justify that law.

Freedom of Assembly

We have the right to peaceful assembly and demonstration under the First Amendment.  The government may limit these rights if there is a clear and present danger.  The state may use time, place, and manner laws in prosecution.  However, they may not be used to defeat the purpose of the assembly.

Double jeopardy

A person may not be tried or punished twice for the same crime.  That seems easy, right?  It’s not.  It’s a little more complicated.  Let’s look a little closer.

  • DJ begins once the jury is impaneled and sworn or when the first witness is sworn in a non-jury trial.
  • DJ ends when the formal judgment is entered.
  • DJ applies when a person has been tried and subsequent charges covers the same conduct, victim, or elements as the previous charge(s).
  • DJ applies to lesser included offenses and to attempt offenses that merge with the completed crime.
  • DJ doesn’t apply to civil cases where elements are similar (keyword) to criminal charges.
  • DJ does apply to juvenile matters.
  • DJ does not apply to convictions overturned on appeal OR due to a mistrial requested by the defendant.
  • Acquittal or conviction on a lesser included offense forecloses on the greater offense with some exceptions.
  • Conviction or acquittal on the greater offense prevents prosecution of the less included charge.
  • DJ does NOT prevent the dual sovereignty doctrine.
  • Prevents a defense against multiple punishments when two statutes have been violated by the same conduct.

Whew – that wore me out.  Is your head spinning?  There is a lot involved with DJ.  It isn’t JUST being tried twice for the same offense.

Substantive Due Process

Guaranteed to us by the Fifth and Fourteenth Amendments…good old due process.  So – what’s substantive due process?

It prohibits laws that are:

  • Too vague
  • Overbroad
  • Unreasonable
  • Arbitrary
  • Capricious

Remember, though, laws are written in broad language for a reason.  It needs to cover most circumstances.  Congress makes the laws and the judiciary applies them to specific circumstances.

Ex Post Facto laws are barred by the Constitution as a violation of due process.



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