The Rights of the Accused

The Rights of the Accused

The rights of the accused include the right to a fair trial; due process; and the right to privacy.

Learning Objectives

Identify key first-generation human rights and civil and political rights

Key Takeaways

Key Points

  • The rights of the accused are: the right to a fair trial; due process; to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.
  • Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion).
  • Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt.

Key Terms

  • civil and political rights: Civil and political rights are a class of rights based upon birthright into a polity or designation otherwise of human rights. They ensure a citizen’s ability to fully participate in the civil and political life of the state without discrimination or political repression, and protect the freedom of classes of persons and individuals from unwarranted infringement into those rights by governments, private organizations, and other entities.
  • first-generation rights: First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights. The idea of three levels of human rights dates to 1979 and is primarily used in European law. This term is rarely, if ever, used in the U.S.
  • criminal procedure: The legal process for adjudicating claims that someone has violated criminal law.

Background

The rights of the accused, include the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defendant prove that s/he is innocent; any doubt is resolved in favor of the defendant. Similarly, all such jurisdictions allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense (which is in some countries called a “court-appointed lawyer”).

First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from the excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights.

Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be “first-generation rights”, and the theory of negative and positive rights considers them to be generally negative rights.

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Mural, Falls Road, Belfast.: The mural on the ‘International Wall’ depicts Frederick Douglass (1815-1895), a former slave who became one of the foremost leaders of the abolitionist movement which fought to end slavery within the United States in the decades prior to the Civil War. Douglass later served as an adviser to President Abraham Lincoln during the Civil War and fought for the adoption of constitutional amendments that guaranteed voting rights and other civil liberties for blacks. He is still revered today for his contributions against racial injustice.

Civil and political rights are not codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to be natural rights. Thomas Jefferson wrote in his 1774 A Summary View of the Rights of British America “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate. ”

United States Criminal Procedure

United States criminal procedure derives from several sources of law: the baseline protections of the United States Constitution, federal and state statutes, federal and state rules of criminal procedure (such as the Federal Rules of Criminal Procedure), and state and federal case law either interpreting the foregoing or deriving from inherent judicial supervisory authority.

The United States Constitution, including the United States Bill of Rights and subsequent amendments, contains provisions regarding criminal procedure. Due to the incorporation of the Bill of Rights, all of these provisions apply equally to criminal proceedings in state courts, with the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment.

The Fourth Amendment and Search and Seizure

The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights guarding against unreasonable searches and seizures.

Learning Objectives

Describe the the historical circumstances that generated the Fourth Amendment and the protections the Amendment affords

Key Takeaways

Key Points

  • The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights guarding against unreasonable searches and seizures, as well as requiring any warrant to be judicially sanctioned and supported by probable cause.
  • Police officers are not required to advise a suspect that he/she may refuse a search. There are also some circumstances in which a third party who has equal control, or common authority, over the property may consent to a search.
  • When an individual does not possess a reasonable expectation of privacy that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search subject to 4th Amendment, and a warrant is never required.

Key Terms

  • searches and seizures: A legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, conduct a search of a person’s property and confiscate any relevant evidence to the crime.
  • Bill of Rights: The collective name for the first ten amendments to the United States Constitution.

Background

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights ([fig:9477]]) guarding against unreasonable searches and seizures, as well as requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance (a type of general search warrant) in the American Revolution. The amendment also states that a search or seizure should be limited in scope according to specific information supplied by law enforcement to the issuing court. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

The text of the Fourth Amendment states the following: “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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”

For instance, the owner of the property in question may consent to the search. The consent must be voluntary, but there is no clear method of determining this; rather, a court will consider the “totality of the circumstances” in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he/she may refuse the search. There are also some circumstances in which a third party who has equal control, or common authority, over the property may consent to a search.

When an individual does not possess a “reasonable expectation of privacy” that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search subject to the Fourth Amendment, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, courts have held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.

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Bill of Rights: 175th anniversary of the Bill of Rights commemorated on 1966 US postage stamp Plate block of four.

The Fifth Amendment, Self-Incrimination, and Double Jeopardy

The Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure.

Learning Objectives

Explain the key provisions of the Fifth Amendment, including self-incrimination and double jeopardy.

Key Takeaways

Key Points

  • The Fifth Amendment protects witnesses from being forced to incriminate themselves.
  • To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties, or forfeiture.
  • The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment.

Key Terms

  • Magna Carta: The 1215 magna carta, also called charter, required King John of England to proclaim certain liberties and accept that his will was not arbitrary. For example, no “freeman” (in the sense of non-serf) could be punished except through the law of the land. This is a right that is still in existence today.

The Fifth Amendment, Self-Incrimination, and Double Jeopardy

Background on the Fifth Amendment

The Fifth Amendment (Amendment V) to the United States Constitution, part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law, which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase ” due process ” (also found in the 14th Amendment) both trace their origins to the Magna Carta.

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Magna Carta: Magna Carta is one of the major documents in British history that set forth legal precedents that would later be interpreted as protecting the civil rights of English subjects

The text of the Fifth Amendment reads as follows: “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.”

Self Incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties, or forfeiture.

Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.

Protection against self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

Double Jeopardy

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy “attaches” when the jury is impaneled, the first witness is sworn, or a plea is accepted.

The government is not permitted to appeal or try again after the entry of an acquittal. The prohibition extends to a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), and an “implied acquittal” via conviction of a lesser included offense.

Blockburger v. United States addresses multiple punishments, including prosecution after conviction. In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart from it via enacted law; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.

The rule for prosecution after mistrials depends on who sought the mistrial. If the defendant moved for a mistrial, there is no bar to retrial, unless the prosecutor acted in bad faith. For example, the prosecutor goads the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds “manifest necessity” for granting the mistrial. The same standard governs mistrials granted sua sponte.

The Exclusionary Rule

The exclusionary rule holds that evidence collected in violation of the defendant’s rights is sometimes inadmissible.

Learning Objectives

Describe the constitutional bases of the exclusionary rule

Key Takeaways

Key Points

  • The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures.
  • The exclusionary rule is designed to provide disincentive to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment of the Bill of Rights.
  • The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain, 504 U.S. 655, the U.S. Supreme Court decided that property owned by aliens in a foreign country is admissible in court.

Key Terms

  • constitutional right: Rights given to citizens by the constitution.
  • right to counsel: When a citizen accused has the right to be legally represented by a legal defense.
  • exclusionary rule: A legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law.

Background

The exclusionary rule is a legal principle in the United States holding that evidence collected or analyzed in violation of the defendant ‘s constitutional rights is sometimes inadmissible for criminal prosecution. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. However, in some circumstances, the exclusionary rule may also be considered to follow directly from the constitutional language. For example, the Fifth Amendment’s command that no person “shall be deprived of life, liberty or property without due process of law. ”

The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide disincentive to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment of the Bill of Rights. The exclusionary rule furthermore applies to violations of the Sixth Amendment, which guarantees the right to counsel.

Most states have their own exclusionary remedies for illegally obtained evidence under their state constitutions and/or statutes. This rule is occasionally referred to as a legal technicality because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from double jeopardy. In strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action can be thrown out from a jury.

The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors.

Limitations of the Rule

The exclusionary rule was passed in 1917, and does not apply in a civil case, a grand jury proceeding, or a parole revocation hearing.

Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments.

The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain, 504 U.S. 655, the Supreme Court decided that property owned by aliens in a foreign country is admissible in court. Prisoners, probationers, parolees and persons crossing U.S. borders are among those receiving limited protections. Corporations, by virtue of being, also have limited rights under the Fourth Amendment (see corporate personhood).

Criticism of the Rule

The exclusionary rule as it has developed in the U.S. has been long criticized, even by respected jurists and commentators. Judge Benjamin Cardozo, generally considered one of the most influential American jurists, was strongly opposed to the rule, stating that under the rule, “The criminal is to go free because the constable has blundered. ”

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U.S. Supreme Court Seal: The Supreme Court of the United States is the highest court in the country. It has ultimate (but largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases.

The Sixth Amendment and the Right to Counsel

The Assistance of Counsel Clause in the Sixth Amendment allows to any person accused the right to counsel for his defense.

Learning Objectives

Summarize the protections afforded an accused under the Sixth Amendment’s Assistance of Counsel Clause

Key Takeaways

Key Points

  • The assistance of counsel clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself, in legal terms known as pro se.
  • Criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous depravation of first choice counsel is automatic reversal.
  • As stated in Brewer v. Williams, 1977, the right to counsel means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.
  • The pivotal case that established the right to counsel in State courts was Gideon v. Wainwright in 1963. Clarence Earl Gideon was convicted of breaking and entering and was imprisoned. He sent a hand-written appeal to the Supreme Court claiming a right to have counsel provided for him as he could not afford an attorney. The court, in a 9-0 decision, applied the Bill of Rights to the states and determined that indigent defendants are entitled to legal defense at public expense.

Key Terms

  • jury proceedings: The United States is the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments.
  • right to counsel: When a citizen accused has the right to be legally represented by a legal defense.

Background

The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.”

The assistance of counsel clause includes, as relevant here, five distinct rights:

  • The right to counsel of choice
  • The right to appointed counsel
  • The right to conflict-free counsel
  • The effective assistance of counsel
  • The right to represent oneself pro se

As stated in Brewer v. Williams, 430 U.S. 387 (1977), the right to counsel means “at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.” Brewer goes on to conclude that once adversarial proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him and that when a defendant is arrested, “arraigned on an arrest warrant before a judge” and “committed by the court to confinement… there can be no doubt that judicial proceedings have been initiated.”

Individuals subject to grand jury proceedings do not have a Sixth Amendment right to counsel because grand juries are not considered by the U.S. Supreme Court to be criminal proceedings, which trigger the protections of that constitutional protection.

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Grand Jury at Arcadia Hotel Fire.: A grand jury investigating the fire that destroyed the Arcadia Hotel in Boston, Massachusetts in 1913.

In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect’s request for legal counsel is only good for fourteen days after the suspect is released from police custody.

Choice of Counsel

Subject to considerations such as conflicts of interest, scheduling, counsel’s authorization to practice law in the jurisdiction, and counsel’s willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous depravation of first choice counsel is automatic reversal.

Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are non-waiveable.

Appointment of Counsel

In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that “in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.” In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own. However, in Betts v. Brady, 316 U.S. 455 (1942), the Court declined to extend this requirement to the state courts under the Fourteenth Amendment unless the defendant demonstrated “special circumstances” requiring the assistance of counsel.

Ineffective Assistance of Counsel

In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both that the defense counsel’s performance fell below an objective standard of reasonableness (the “performance prong”) and that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the “prejudice prong”).

To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel’s deficient performance, he or she would not have plead guilty.

Pro Se Legal Representation in the United States

A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the defendant’s right to pro se representation. However, under Godinez v. Moran, 509 U.S. 389 (1993), a court can require a defendant to be represented by counsel if it believes the accused less than fully competent to adequately proceed without counsel.

Some states extend the right to counsel to all matters where a defendant’s liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).

The Sixth Amendment and Jury Trials

The Sixth Amendment U.S. Constitution is the part of the Bill of Rights, which sets forth rights related to criminal prosecutions.

Learning Objectives

Summarize the rights afforded to an accused under the Sixth Amendment and describe the protocols in place to achieve the impartiality of the jury to ensure these rights

Key Takeaways

Key Points

  • The Sixth Amendment (Amendment VI) to the U.S. Constitution is the part of the Bill of Rights, which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
  • The right to a jury has always depended on the nature of the offense with which the defendant is charged.
  • The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased.
  • The jury panel must represent a fair cross-section of the community.

Key Terms

  • voir dire: The preliminary phase of a jury trial in which the jurors are examined and selected.
  • impartiality: The quality of being impartial; fairness.
  • petty offenses: Criminal offenses punishable by imprisonment for not more than six months and are not covered by the jury requirement.

Background

The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights, which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.

The Sixth Amendment states the following: “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 been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Impartial Jury

The right to a jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses are those punishable by imprisonment for not more than six months and are not covered by the jury requirement. Even where multiple petty offenses are concerned, the total time of imprisonment possibly exceeding six months, the right to a jury trial does not exist. Also, in the United States, except for serious offenses (such as murder), minors are usually tried in a juvenile court, which lessens the sentence allowed, but forfeits the right to a jury.

Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.

When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by “historical accident,” and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury. Although on the basis of history and precedent the Sixth Amendment mandates unanimity in a federal jury trial, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment, while requiring States to provide jury trials for serious crimes, does not incorporate all the elements of a jury trial within the meaning of the Sixth Amendment and does not require jury unanimity.

Impartiality

The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased. At voir dire, each side may question potential jurors to determine any bias, and challenge them if the same is found; the court determines the validity of these challenges for cause. Defendants may not challenge a conviction on the basis that a challenge for cause was denied incorrectly if they had the opportunity to use peremptory challenges.

Another factor in determining the impartiality of the jury is the nature of the panel from which the jurors are selected. The jury panel must represent a fair cross-section of the community; the defendant may establish that the requirement was violated by showing that the allegedly excluded group is a “distinctive” one in the community, that the representation of such a group in venires is unreasonable and unfair in regard to the number of persons belonging to such a group, and that the under-representation is caused by a systematic exclusion in the selection process. Thus, in Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court invalidated a state law that exempted women who had not made a declaration of willingness to serve from jury service, while not doing the same for men.

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The Jury Panel: Great Lakes, Ill. (Dec. 23, 2008) Legalman 1st Class Christie Richardson, a trial services legalman assigned to Region Legal Service Office Midwest makes an opening statement for the prosecution to a jury during a mock trial. Richardson was part of a legal team demonstrating the legal system for 22 Navy Junior Reserve Officers Training Corps (NJROTC) cadets from Chicago-area high schools.

The Eighth Amendment and Cruel and Unusual Punishment

The Eight Amendment determines the provisions for cruel and unusual punishment.

Learning Objectives

Summarize the sources of the Eight Amendment in British history and significance moments in American case law

Key Takeaways

Key Points

  • The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishment.
  • The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights ‘ stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.
  • Justice Brennan wrote that no state would violate any one of the four principles prohibiting cruel and unusual punishment. Court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles.

Key Terms

  • cadena temporal: A former form of punishment overturned by the Supreme Court. It mandated “hard and painful labor,” shackling for the duration of incarceration, and permanent civil disabilities.

Background

The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment clause applies to states. The phrases employed originated in the English Bill of Rights of 1689.

The Eighth Amendment was adopted as part of the Bill of Rights in 1791. The provision was largely inspired by the case of Titus Oates. The Englishman was tried in 1685 for multiple acts of perjury during the ascension of King James II after a number of people whom Oates had wrongly accused of treason were executed. Oates was sentenced to imprisonment, along with an annual ordeal of whipping and time in the pillory. The Oates case became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence. Oates’s punishment involved ordinary penalties collectively imposed in an excessive and unprecedented manner. The reason Oates did not receive the death penalty may be because the punishment would have deterred even honest witnesses from testifying in later cases.

The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights’ stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.

According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, prohibiting other punishments that are deemed excessive when compared to the crime or the competence of the perpetrator.

Punishments Forbidden for Certain Crimes

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Punishment of the Paddle: This is an old form of punishment.

The case of Weems v. United States, (1910) marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written “it is hard to view Weems as announcing a constitutional requirement of proportionality. ”

In Trop v. Dulles, (1958), the Supreme Court held that taking away citizenship from a natural-born citizen for a crime was unconstitutional. The punishment was considered “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society. ”

In Furman v. Georgia (1972), Justice Brennan wrote that there are four principles by which particular punishment is deemed cruel and unusual: Punishment should not be patently unnecessary, degrading to human dignity, inflicted in a wholly arbitrary fashion, or severe enough to be clearly rejected throughout society.

It is up to individual states to decide if death can be considered “cruel and unusual” punishment. As of 2016, 31 states (and the federal government) had death as an acceptable form of punishment. Justice Brennan also wrote that no state would pass a law violating any one of these principles. Court decisions regarding the Eighth Amendment would hence involve a “cumulative” analysis of the implication of each of the four principles, setting a standard in the way punishments were considered cruel and unusual.

In California, more than 700 inmates await execution, with the last execution occurring in 2006. Because California’s death penalty was approved by voter initiative, it can only be repealed by voters and not the legislature. Prop. 62 on the Nov. 8, 2016 ballot will ask voters to do repeal its death penalty.

The Miranda Warning

The Miranda warning is a statement read by police to criminal suspects that asserts their right to counsel and right to remain silent.

Learning Objectives

Describe the Miranda Rights and the obligations they impose on police

Key Takeaways

Key Points

  • The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody.
  • The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.
  • The Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jailhouse informant exception and (3) the public safety exception.

Key Terms

  • procedure rule: It is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters).
  • testimonial evidence: It is the proof given by the product of custodial police interrogation.

Background

The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

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Incorporating Amendment V: Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.

In other words, a Miranda warning is a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel.

Mirada refers to Ernesto Miranda. In 1963 Miranda was arrested in Phoenix and  charged with rape, kidnapping, and robbery. Miranda was not informed of his rights prior to the police interrogation. During the two-hour interrogation, Miranda allegedly confessed to committing the crimes, which the police apparently recorded. Miranda, who had not finished ninth grade and had a history of mental instability, had no counsel present. At trial, the prosecution’s case consisted solely of his confession. Miranda was convicted of both rape and kidnapping and sentenced to 20 to 30 years in prison. Miranda appealed to the U.S. Supreme Court and won his case. The Supreme Court devised a statement that must be read to those who are arrested.

Thus in theory, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial. However, in the pragmatic interactions between police and citizens, this is rarely true. In Berghuis v. Thompkins, the court held that unless a suspect actually states that he is relying on this right, his subsequent voluntary statements can be used in court and police can continue to interact with or question him.

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. The Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.

It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. Aliens receive constitutional protections when they have come within the territory of the United States and have developed substantial connections with this country.

Assertion of Miranda Rights

If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation. In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between the termination of the original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter. The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant contacts the police on his own volition. If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert the right.

Exceptions of Miranda Rights

The Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jailhouse informant exception and (3) the public safety exception. Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered “interrogation” under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule.