{"id":111,"date":"2017-08-08T16:31:10","date_gmt":"2017-08-08T16:31:10","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/openstax-americangovernment\/chapter\/the-rights-of-suspects\/"},"modified":"2018-12-14T15:38:12","modified_gmt":"2018-12-14T15:38:12","slug":"the-rights-of-suspects","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/chapter\/the-rights-of-suspects\/","title":{"raw":"The Rights of Suspects","rendered":"The Rights of Suspects"},"content":{"raw":"<div class=\"textbox learning-objectives\">\r\n<h3>Learning Objectives<\/h3>\r\n<p id=\"fs-id1163755116544\">By the end of this section, you will be able to:<\/p>\r\n\r\n<ul id=\"fs-id1163757532926\">\r\n \t<li>Identify the rights of those suspected or accused of criminal activity<\/li>\r\n \t<li>Explain how Supreme Court decisions transformed the rights of the accused<\/li>\r\n \t<li>Explain why the Eighth Amendment is controversial regarding capital punishment<\/li>\r\n<\/ul>\r\n<\/div>\r\n<p id=\"fs-id1163755042273\">In addition to protecting the personal freedoms of individuals, the <strong><span class=\"no-emphasis\">Bill of Rights<\/span><\/strong> protects those suspected or accused of crimes from various forms of unfair or unjust treatment. The prominence of these protections in the Bill of Rights may seem surprising. Given the colonists\u2019 experience of what they believed to be unjust rule by British authorities, however, and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime\u2014no matter how unpopular\u2014is perhaps more understandable. What is more, the revolutionaries, and the eventual framers of the Constitution, wanted to keep the best features of English law as well.<\/p>\r\n<p id=\"fs-id1163757576394\">In addition to the protections outlined in the Fourth Amendment, which largely pertain to investigations conducted before someone has been charged with a crime, the next four amendments pertain to those suspected, accused, or convicted of crimes, as well as people engaged in other legal disputes. At every stage of the legal process, the Bill of Rights incorporates protections for these people.<\/p>\r\n\r\n<div id=\"fs-id1163757621135\" class=\"bc-section section\">\r\n<h2>THE FIFTH AMENDMENT<\/h2>\r\n<p id=\"fs-id1163757278020\">Many of the provisions dealing with the rights of the accused are included in the <strong><span class=\"no-emphasis\">Fifth Amendment<\/span><\/strong>; accordingly, it is one of the longest in the Bill of Rights. The Fifth Amendment states in full:<\/p>\r\n\r\n<blockquote id=\"fs-id1163757366718\" class=\"block\">\r\n<div>\u201cNo 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 offence 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.\u201d<\/div><\/blockquote>\r\n<p id=\"fs-id1163755073146\">The first clause requires that serious crimes be prosecuted only after an indictment has been issued by a grand jury. However, several exceptions are permitted as a result of the evolving interpretation and understanding of this amendment by the courts, given the Constitution is a living document. First, the courts have generally found this requirement to apply only to felonies; less serious crimes can be tried without a grand jury proceeding. Second, this provision of the Bill of Rights does <em>not<\/em> apply to the states because it has not been incorporated; many states instead require a judge to hold a preliminary hearing to decide whether there is enough evidence to hold a full trial. Finally, members of the armed forces who are accused of crimes are not entitled to a grand jury proceeding.<\/p>\r\n<p id=\"fs-id1163757196373\">The Fifth Amendment also protects individuals against <strong>double jeopardy<\/strong>, a process that subjects a suspect to prosecution twice for the same criminal act. No one who has been acquitted (found not guilty) of a crime can be prosecuted again for that crime. But the prohibition against double jeopardy has its own exceptions. The most notable is that it prohibits a second prosecution only at the same level of government (federal or state) as the first; the federal government can try you for violating federal law, even if a state or local court finds you not guilty of the same action. For example, in the early 1990s, several Los Angeles police officers accused of brutally beating motorist Rodney <strong><span class=\"no-emphasis\">King<\/span><\/strong> during his arrest were acquitted of various charges in a state court, but some were later convicted in a federal court of violating King\u2019s civil rights.<\/p>\r\n<p id=\"fs-id1163755005288\">The double jeopardy rule does not prevent someone from recovering damages in a civil case\u2014a legal dispute between individuals over a contract or compensation for an injury\u2014that results from a criminal act, even if the person accused of that act is found not guilty. One famous case from the 1990s involved former football star and television personality O. J. <strong><span class=\"no-emphasis\">Simpson<\/span><\/strong>. Simpson, although acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a criminal court, was later found to be responsible for their deaths in a subsequent civil case and as a result was forced to forfeit most of his wealth to pay damages to their families.<\/p>\r\n<p id=\"fs-id1163755021928\">Perhaps the most famous provision of the Fifth Amendment is its protection against <strong>self-incrimination<\/strong>, or the right to remain silent. This provision is so well known that we have a phrase for it: \u201ctaking the Fifth.\u201d People have the right not to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not testify in his or her own defense, the prosecution cannot use that failure to testify as evidence of guilt or imply that an innocent person would testify. This provision became embedded in the public consciousness following the Supreme Court\u2019s 1966 ruling in <strong><span class=\"no-emphasis\"><em>Miranda v. Arizona<\/em><\/span><\/strong>, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody.<\/p>\r\n\r\n<div class=\"note reference\" style=\"text-align: center\">\r\n<div class=\"textbox shaded\">\r\n\r\n<hr \/>\r\n\r\n<em>Miranda v. Arizona<\/em>, 384 U.S. 436 (1966).\r\n\r\n<\/div>\r\n<\/div>\r\nHowever, contrary to some media depictions of the <strong>Miranda warning<\/strong>, law enforcement officials do not necessarily have to inform suspects of their rights before they are questioned in situations where they are free to leave.\r\n<p id=\"fs-id1163755114914\">Like the Fourteenth Amendment\u2019s due process clause, the Fifth Amendment prohibits the federal government from depriving people of their \u201clife, liberty, or property, without due process of law.\u201d Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent, fair procedures to decide when people\u2019s freedoms are limited; in other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards comes into play for the legal prosecution of crimes. However, the Patriot Act, passed into law after the 9\/11 terrorist attacks, somewhat altered this notion.<\/p>\r\n<p id=\"fs-id1163757277168\">The final provision of the Fifth Amendment has little to do with crime at all. The <em>takings clause<\/em> says that \u201cprivate property [cannot] be taken for public use, without just compensation.\u201d This provision, along with the due process clause\u2019s provisions limiting the taking of property, can be viewed as a protection of individuals\u2019 <strong>economic liberty<\/strong>: their right to obtain, use, and trade tangible and intangible property for their own benefit. For example, you have the right to trade your knowledge, skills, and labor for money through work or the use of your property, or trade money or goods for other things of value, such as clothing, housing, education, or food.<\/p>\r\n<p id=\"fs-id1163757295212\">The greatest recent controversy over economic liberty has been sparked by cities\u2019 and states\u2019 use of the power of eminent domain to take property for redevelopment. Traditionally, the main use of <strong>eminent domain<\/strong> was to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require fairly straight routes to be efficient. Because any single property owner could effectively block a particular route or extract an unfair price for land if it was the last piece needed to assemble a route, there are reasonable arguments for using eminent domain as a last resort in these circumstances, particularly for projects that convey substantial benefits to the public at large.<\/p>\r\n<p id=\"fs-id1163755040156\">However, increasingly eminent domain has been used to allow economic development, with beneficiaries ranging from politically connected big businesses such as car manufacturers building new factories to highly profitable sports teams seeking ever-more-luxurious stadiums (Figure). And, while we traditionally think of property owners as relatively well-off people whose rights don\u2019t necessarily need protecting since they can fend for themselves in the political system, frequently these cases pit lower- and middle-class homeowners against multinational corporations or multimillionaires with the ear of city and state officials. In a notorious 2005 case, <strong><span class=\"no-emphasis\"><em>Kelo v. City of New London<\/em><\/span><\/strong>, the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical company\u2019s corporate campus.<\/p>\r\n\r\n<div class=\"note reference\" style=\"text-align: center\">\r\n<div class=\"textbox shaded\">\r\n\r\n<hr \/>\r\n\r\n<em>Kelo et al. v. City of New London et al.<\/em>, 545 U.S. 469 (2005).\r\n\r\n<\/div>\r\n<\/div>\r\nThe case led to a public backlash against the use of eminent domain and legal changes in many states, making it harder for cities to take property from one private party and give it to another for economic redevelopment purposes.\r\n<div id=\"OSC_AmGov_04_03_Stadium\" class=\"bc-figure figure\">\r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"525\"]<img src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163046\/OSC_AmGov_04_03_Stadium.jpg\" alt=\"A photo of the inside of a football stadium, showing the field in the foreground and rows of empty seats in the background.\" width=\"525\" height=\"394\" \/> <strong>Figure 1.\u00a0<\/strong>AT&amp;T Stadium in Arlington, Texas, sits on land taken by eminent domain. (credit: John Purget)[\/caption]\r\n\r\n<\/div>\r\n&nbsp;\r\n<p id=\"fs-id1163757275476\">Some disputes over economic liberty have gone beyond the idea of eminent domain. In the past few years, the emergence of on-demand ride-sharing services like Lyft and Uber, direct sales by electric car manufacturer Tesla Motors, and short-term property rentals through companies like Airbnb have led to conflicts between people seeking to offer profitable services online, states and cities trying to regulate these businesses, and the incumbent service providers that compete with these new business models. In the absence of new public policies to clarify rights, the path forward is often determined through norms established in practice, by governments, or by court cases.<\/p>\r\n\r\n<\/div>\r\n<div id=\"fs-id1163755040339\" class=\"bc-section section\">\r\n<h2>THE SIXTH AMENDMENT<\/h2>\r\n<p id=\"fs-id1163757321000\">Once someone has been charged with a crime and indicted, the next stage in a criminal case is typically the trial itself, unless a plea bargain is reached. The <strong><span class=\"no-emphasis\">Sixth Amendment<\/span><\/strong> contains the provisions that govern criminal trials; in full, it states:<\/p>\r\n\r\n<blockquote id=\"fs-id1163757324184\" class=\"block\">\r\n<div>\u201cIn 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 defence [sic].\u201d<\/div><\/blockquote>\r\n<p id=\"fs-id1163757195556\">The first of these guarantees is the right to have a speedy, public trial by an impartial jury. Although there is no absolute limit on the length of time that may pass between an indictment and a trial, the Supreme Court has said that excessively lengthy delays must be justified and balanced against the potential harm to the defendant.<\/p>\r\n\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nSee, for example, <em>Barker v. Wingo<\/em>, 407 U.S. 514 (1972).\r\n\r\n<\/div>\r\nIn effect, the speedy trial requirement protects people from being detained indefinitely by the government. Yet the courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant\u2019s right to a fair trial, it can be held behind closed doors, while prosecutors can request closed proceedings only in certain, narrow circumstances (generally, to protect witnesses from retaliation or to guard classified information). In general, a prosecution must also be made in the \u201cstate and district\u201d where the crime was committed; however, people accused of crimes may ask for a change of venue for their trial if they believe pre-trial publicity or other factors make it difficult or impossible for them to receive a fair trial where the crime occurred.\r\n\r\n<\/div>\r\n<div class=\"textbox shaded\">\r\n\r\n<hr \/>\r\n\r\nAlthough the Supreme Court\u2019s proceedings are not televised and there is no video of the courtroom, audio recordings of the oral arguments and decisions announced in cases have been made since 1955. A complete collection of these recordings can be found at the <a href=\"https:\/\/www.openstaxcollege.org\/l\/29oyezproject\">Oyez Project<\/a> website along with full information about each case.\r\n\r\n<\/div>\r\n<p id=\"fs-id1163757193796\">Most people accused of crimes decline their right to a jury trial. This choice is typically the result of a <strong>plea bargain<\/strong>, an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perhaps to less serious charges, in exchange for more lenient punishment than he or she might receive if convicted after a full trial. There are a number of reasons why this might happen. The evidence against the accused may be so overwhelming that conviction is a near-certainty, so he or she might decide that avoiding the more serious penalty (perhaps even the death penalty) is better than taking the small chance of being acquitted after a trial. Someone accused of being part of a larger crime or criminal organization might agree to testify against others in exchange for lighter punishment. At the same time, prosecutors might want to ensure a win in a case that might not hold up in court by securing convictions for offenses they know they can prove, while avoiding a lengthy trial on other charges they might lose.<\/p>\r\n<p id=\"fs-id1163757186415\">The requirement that a jury be impartial is a critical requirement of the Sixth Amendment. Both the prosecution and the defense are permitted to reject potential jurors who they believe are unable to fairly decide the case without prejudice. However, the courts have also said that the composition of the jury as a whole may in itself be prejudicial; potential jurors may not be excluded simply because of their race or sex, for example.<\/p>\r\n\r\n<div class=\"note reference\" style=\"text-align: center\">\r\n<div class=\"textbox shaded\">\r\n\r\n<hr \/>\r\n\r\nSee, for example, <em>Batson v. Kentucky<\/em>, 476 U.S. 79 (1986); <em>J. E. B. v. Alabama ex rel. T. B.<\/em>, 511 U.S. 127 (1994).\r\n\r\n<\/div>\r\n<p style=\"text-align: left\">The Sixth Amendment guarantees the right of those accused of crimes to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by the prosecution. In general, the only testimony acceptable in a criminal trial must be given in a courtroom and be subject to cross-examination; hearsay, or testimony by one person about what another person has said, is generally inadmissible, although hearsay may be presented as evidence when it is an admission of guilt by the defendant or a \u201cdying declaration\u201d by a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.<\/p>\r\n\r\n<\/div>\r\n<p id=\"fs-id1163757285428\">Finally, the Sixth Amendment guarantees the right of those accused of crimes to have the assistance of an attorney in their defense. Historically, many states did not provide attorneys to those accused of most crimes who could not afford one themselves; even when an attorney was provided, his or her assistance was often inadequate at best. This situation changed as a result of the Supreme Court\u2019s decision in <span class=\"no-emphasis\"><em>Gideon v. Wainwright<\/em><\/span> (1963).<\/p>\r\n\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\n<em>Gideon v. Wainwright<\/em>, 372 U.S. 335 (1963).\r\n\r\n<\/div>\r\n<\/div>\r\nClarence <strong><span class=\"no-emphasis\">Gideon<\/span><\/strong>, a poor drifter, was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried and convicted and sentenced to a five-year prison term. While in prison\u2014still without assistance of a lawyer\u2014he drafted a handwritten appeal and sent it to the Supreme Court, which agreed to hear his case (Figure). The justices unanimously ruled that Gideon, and anyone else accused of a serious crime, was entitled to the assistance of a lawyer, even if they could not afford one, as part of the general due process right to a fair trial.\r\n<div id=\"OSC_AmGov_04_03_Gideon\" class=\"bc-figure figure\">\r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"747\"]<img src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163054\/OSC_AmGov_04_03_Gideon.jpg\" alt=\"Photo A is of a handwritten petition. Photo B is of Clarence Gideon.\" width=\"747\" height=\"561\" \/> <strong>Figure 2.\u00a0<\/strong>The handwritten petition for appeal (a) sent to the Supreme Court by Clarence Gideon, shown here circa 1961 (b), the year of his Florida arrest for breaking and entering.[\/caption]\r\n\r\n<\/div>\r\nThe Supreme Court later extended the <em>Gideon v. Wainwright<\/em> ruling to apply to any case in which an accused person faced the possibility of \u201closs of liberty,\u201d even for one day. The courts have also overturned convictions in which people had incompetent or ineffective lawyers through no fault of their own. The <em>Gideon<\/em> ruling has led to an increased need for professional public defenders, lawyers who are paid by the government to represent those who cannot afford an attorney themselves, although some states instead require practicing lawyers to represent poor defendants on a pro bono basis (essentially, donating their time and energy to the case).<span id=\"fs-id1163757311766\">\r\n<\/span>\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nThe <a href=\"https:\/\/www.openstaxcollege.org\/l\/29publicdefend\">National Association for Public Defense<\/a> represents public defenders, lobbying for better funding for public defense and improvements in the justice system in general.\r\n\r\n<\/div>\r\n<div id=\"fs-id1163757274244\" class=\"note insider-perspective\">\r\n<div class=\"title\">\r\n<div class=\"textbox shaded\">\r\n<h3 class=\"title\">Criminal Justice: Theory Meets Practice<\/h3>\r\n<p id=\"fs-id1163757370322\">Typically a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against him or her, to be made aware of the right to counsel, and to enter a plea. Other hearings may be held to decide on the admissibility of evidence seized or otherwise obtained by prosecutors.<\/p>\r\n<p id=\"fs-id1163757273623\">If the two sides cannot agree on a plea bargain during this period, the next stage is the selection of a jury. A pool of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in most states) and one or two alternates. All hear the evidence in the trial; unless an alternate must serve, the original twelve decide whether the evidence overwhelmingly points toward guilt or innocence beyond a reasonable doubt.<\/p>\r\n<p id=\"fs-id1163757311644\">In the trial itself, the lawyers for the prosecution and defense make opening arguments, followed by testimony by witnesses for the prosecution (and any cross-examination), and then testimony by witnesses for the defense, including the defendant if he or she chooses. Additional prosecution witnesses may be called to rebut testimony by the defense. Finally, both sides make closing arguments. The judge then issues instructions to the jury, including an admonition not to discuss the case with anyone outside the jury room. The jury members leave the courtroom to enter the jury room and begin their deliberations (Figure).<\/p>\r\n\r\n<div id=\"OSC_AmGov_04_03_Courtroom\" class=\"bc-figure figure\">\r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"525\"]<img src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163100\/OSC_AmGov_04_03_Courtroom.jpg\" alt=\"A photo of a typical courtroom, empty of people. In the foreground are benches for attendees, then two tables in the center for the defense and prosecution, and in the background the judge\u2019s stand. To the left of the judge\u2019s stand is a row of chairs for the jury, and to the right of the judge\u2019s stand is the witness stand.\" width=\"525\" height=\"347\" \/> <strong>Figure 3.\u00a0<\/strong>A typical courtroom in the United States. The jury sits along one side, between the judge\/witness stand and the tables for the defense and prosecution.[\/caption]\r\n\r\n<\/div>\r\n&nbsp;\r\n<p id=\"fs-id1163757469882\">The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review evidence or to hear transcripts of testimony. They deliberate in secret and their decision must be unanimous; if they are unable to agree on a verdict after extensive deliberation, a mistrial may be declared, which in effect requires the prosecution to try the case all over again.<\/p>\r\n<p id=\"fs-id1163757310790\">A defendant found not guilty of all charges will be immediately released unless other charges are pending (e.g., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of one or more offenses, the judge will choose an appropriate sentence based on the law and the circumstances; in the federal system, this sentence will typically be based on guidelines that assign point values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should be subject to capital punishment or life imprisonment.<\/p>\r\n<p id=\"fs-id1163757188149\">The reality of court procedure is much less dramatic and exciting than what is typically portrayed in television shows and movies. Nonetheless, most Americans will participate in the legal system at least once in their lives as a witness, juror, or defendant.<\/p>\r\n<p id=\"fs-id1163754996162\"><em>Have you or any member of your family served on a jury? If so, was the experience a positive one? Did the trial proceed as expected? If you haven\u2019t served on a jury, is it something you look forward to? Why or why not?<\/em><\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757230421\" class=\"bc-section section\">\r\n<h2>THE SEVENTH AMENDMENT<\/h2>\r\n<p id=\"fs-id1163757303383\">The <strong><span class=\"no-emphasis\">Seventh Amendment<\/span><\/strong> deals with the rights of those engaged in civil disputes; as noted earlier, these are disagreements between individuals or businesses in which people are typically seeking compensation for some harm caused. For example, in an automobile accident, the person responsible is compelled to compensate any others (either directly or through his or her insurance company). Much of the work of the legal system consists of efforts to resolve civil disputes. The Seventh Amendment, in full, reads:<\/p>\r\n\r\n<blockquote id=\"fs-id1163757248337\" class=\"block\">\r\n<div>\u201cIn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.\u201d<\/div><\/blockquote>\r\n<p id=\"fs-id1163757246552\">Because of this provision, all trials in civil cases must take place before a jury unless both sides waive their right to a jury trial. However, this right is not always incorporated; in many states, civil disputes\u2014particularly those involving small sums of money, which may be heard by a dedicated small claims court\u2014need not be tried in front of a jury and may instead be decided by a judge working alone.<\/p>\r\n<p id=\"fs-id1163757282248\">The Seventh Amendment limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury. For example, if a jury decides a person was responsible for an action and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional common-law distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular case.<\/p>\r\n\r\n<\/div>\r\n<div class=\"bc-section section\">\r\n<h1>THE EIGHTH AMENDMENT<\/h1>\r\n<p id=\"fs-id1163757614129\">The <strong><span class=\"no-emphasis\">Eighth Amendment<\/span><\/strong> says, in full:<\/p>\r\n\r\n<blockquote id=\"fs-id1163757622991\" class=\"block\">\r\n<div>\u201cExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\u201d<\/div><\/blockquote>\r\n<em>Bail<\/em> is a payment of money that allows a person accused of a crime to be freed pending trial; if you \u201cmake bail\u201d in a case and do not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay <span class=\"no-emphasis\">bail<\/span> directly, they may instead get a <em>bail bond<\/em>, which allows them to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, people believed likely to flee or who represent a risk to the community while free may be denied bail and held in jail until their trial takes place.\r\n<p id=\"fs-id1163757230648\">It is rare for bail to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one \u201cso grossly excessive as to amount to deprivation of property without due process of law\u201d or \u201cgrossly disproportional to the gravity of a defendant\u2019s offense.\u201d<\/p>\r\n\r\n<div class=\"note reference\" style=\"text-align: center\">\r\n<div class=\"textbox shaded\">\r\n\r\n<hr \/>\r\n\r\n<em>Waters-Pierce Oil Co. v. Texas<\/em>, 212 U.S. 86 (1909); <em>United States v. Bajakajian<\/em>, 524 U.S. 321 (1998).\r\n\r\n<\/div>\r\n<\/div>\r\nIn practice the courts have rarely struck down fines as excessive either.\r\n<p id=\"fs-id1163757298414\">The most controversial provision of the Eighth Amendment is the ban on \u201ccruel and unusual punishments.\u201d Various torturous forms of execution common in the past\u2014drawing and quartering, burning people alive, and the like\u2014are prohibited by this provision.<\/p>\r\n\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nSee, for example, the discussion in <em>Wilkerson v. Utah<\/em>, 99 U.S. 130 (1879).\r\n\r\n<\/div>\r\n<\/div>\r\nRecent controversies over lethal injections and firing squads to administer the death penalty suggest the topic is still salient. While the Supreme Court has never established a definitive test for what constitutes a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when to outside observers the punishment might be reasonably seen as disproportionate or excessive.\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nPerhaps the most notorious example, <em>Harmelin v. Michigan<\/em>, 501 U.S. 957 (1991), upheld a life sentence in a case where the defendant was convicted of possessing just over one pound of cocaine (and no other crime).\r\n\r\n<\/div>\r\n<\/div>\r\n<p id=\"fs-id1163757240994\">In recent years the Supreme Court has issued a series of rulings substantially narrowing the application of the death penalty. As a result, defendants who have mental disabilities may not be executed.<\/p>\r\n\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\n<em>Atkins v. Virginia<\/em>, 536 U.S. 304 (2002).\r\n\r\n<\/div>\r\n<\/div>\r\nAlso, defendants who were under eighteen when they committed an offense that is otherwise subject to the death penalty may not be executed.\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\n<em>Roper v. Simmons<\/em>, 543 U.S. 551 (2005).\r\n\r\n<\/div>\r\n<\/div>\r\nThe court has generally rejected the application of the death penalty to crimes that did not result in the death of another human being, most notably in the case of rape.\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\n<em>Kennedy v. Louisiana<\/em>, 554 U.S. 407 (2008).\r\n\r\n<\/div>\r\nAnd, while permitting the death penalty to be applied to murder in some cases, the Supreme Court has generally struck down laws that require the application of the death penalty in certain circumstances. Still, the United States is among ten countries with the most executions worldwide (Figure).\r\n\r\n<\/div>\r\n<div id=\"OSC_AmGov_04_03_Executions\" class=\"bc-figure figure\">\r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"975\"]<img src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163108\/OSC_AmGov_04_03_Executions.jpg\" alt=\"Chart showing the rate of execution in the 10 countries with the highest execution rates. The chart is titled \u201cRate of Execution in the 10 Countries with the Most Executions, 2007 \u2013 2012\u201d. The chart is divided into three columns, \u201cCountry\u201d, \u201cNumber of annual executions, on average\u201d, and \u201cNumber of annual executions, per capita\u201d. Under the first column \u201cCountry\u201d are the values \u201cIran\u201d, \u201cSaudi Arabia\u201d, \u201cIraq\u201d, \u201cChina\u201d, \u201cLibya\u201d, \u201cYemen\u201d, \u201cNorth Korea\u201d, \u201cPakistan\u201d, \u201cUnited States\u201d, and \u201cVietnam\u201d. Under the second column \u201cNumber of annual executions, on average\u201d are the values \u201c277.2\u201d, \u201c70.5\u201d, \u201c42.7\u201d, \u201c1720-2400\u201d, \u201c6.5\u201d, \u201c25.3\u201d, \u201c17.5\u201d, \u201c28.5\u201d, \u201c36.7,\u201d and \u201c9.7\u201d. Under the third column \u201cNumber of annual executions, per capita\u201d are the values \u201c0.000381%\u201d, \u201c0.000257%\u201d, \u201c0.000157%\u201d, \u201c0.000129-0.000180% (estimate)\u201d, \u201c0.000116%\u201d, \u201c0.000109%\u201d, \u201c0.000073%\u201d, \u201c0.000016%\u201d, \u201c0.000012%\u201d, and \u201c0.000001%\u201d. At the bottom of the chart the source is listed as \u201cSource: Amnesty International, \u201cDeath Penalty Statistics, Country by Country.\u201d 2012\u201d.\" width=\"975\" height=\"796\" \/> <strong>Figure 4.\u00a0<\/strong>The United States has the ninth highest per capita rate of execution in the world.[\/caption]\r\n\r\n<\/div>\r\n<p id=\"fs-id1163757274808\">At the same time, however, it appears that the public mood may have shifted somewhat against the death penalty, perhaps due in part to an overall decline in violent crime. The reexamination of past cases through DNA evidence has revealed dozens in which people were wrongfully executed.<\/p>\r\n\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nElizabeth Lopatto, \u201cHow Many Innocent People Are Sentenced To Death?,\u201d <em>Forbes<\/em>, 29 April 2014. <a href=\"http:\/\/www.forbes.com\/sites\/elizabethlopatto\/2014\/04\/29\/how-many-innocent-people-are-sentenced-to-death\/#6e9ae5175cc1\">http:\/\/www.forbes.com\/sites\/elizabethlopatto\/2014\/04\/29\/how-many-innocent-people-are-sentenced-to-death\/#6e9ae5175cc1<\/a> (March 1, 2016).\r\n\r\n<\/div>\r\n<\/div>\r\nFor example, Claude <strong><span class=\"no-emphasis\">Jones<\/span><\/strong> was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his; however, with better DNA testing technology, it was later found to be that of the victim.\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\" style=\"text-align: center\">\r\n\r\n<hr \/>\r\n\r\nDave Mann, \u201cDNA Tests Undermine Evidence in Texas Execution: New Results Show Claude Jones was Put to Death on Flawed Evidence,\u201d <em>Texas Observer<\/em>, 11 November 2010. <a href=\"http:\/\/www.texasobserver.org\/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution\/\">http:\/\/www.texasobserver.org\/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution\/<\/a> (March 4, 2016).\r\n\r\n<\/div>\r\nPerhaps as a result of this and other cases, seven additional states have abolished capital punishment since 2007. As of 2015, nineteen states and the District of Columbia no longer apply the death penalty in new cases, and several other states do not carry out executions despite sentencing people to death.\r\n\r\n<\/div>\r\n<div class=\"note reference\">\r\n<div class=\"textbox shaded\">See, for example, \u201cStates With and Without the Death Penalty,\u201d Death Penalty Information Center, <a href=\"http:\/\/www.deathpenaltyinfo.org\/states-and-without-death-penalty\">http:\/\/www.deathpenaltyinfo.org\/states-and-without-death-penalty<\/a> (March 4, 2016).<\/div>\r\nIt remains to be seen whether this gradual trend toward the elimination of the death penalty by the states will continue, or whether the Supreme Court will eventually decide to follow former Justice Harry <strong><span class=\"no-emphasis\">Blackmun<\/span><\/strong>\u2019s decision to \u201cno longer\u2026 tinker with the machinery of death\u201d and abolish it completely.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757268463\" class=\"summary\">\r\n<p id=\"fs-id1163757272935\">The rights of those suspected, accused, and convicted of crimes, along with rights in civil cases and economic liberties, are protected by the second major grouping of amendments within the Bill of Rights. The Fifth Amendment secures various procedural safeguards, protects suspects\u2019 right to remain silent, forbids trying someone twice at the same level of government for the same criminal act, and limits the taking of property for public uses. The Sixth Amendment ensures fairness in criminal trials, including through a fair and speedy trial by an impartial jury, the right to assistance of counsel, and the right to examine and compel testimony from witnesses. The Seventh Amendment ensures the right to jury trials in most civil cases (but only at the federal level). Finally, the Eighth Amendment prohibits excessive fines and bails, as well as \u201ccruel and unusual punishments,\u201d although the scope of what is cruel and unusual is subject to debate.<\/p>\r\n\r\n<\/div>\r\n<div id=\"fs-id1163757528969\" class=\"review-questions\">\r\n<div id=\"fs-id1163757575069\" class=\"exercise\">\r\n<div id=\"fs-id1163757285288\" class=\"problem\">\r\n<div class=\"textbox shaded\">\r\n<div id=\"fs-id1163757575069\" class=\"exercise\">\r\n<div id=\"fs-id1163757285288\" class=\"problem\">\r\n<p id=\"fs-id1163757357586\">The Supreme Court case known as <em>Kelo v. City of New London<\/em> was controversial because it ________.<\/p>\r\n\r\n<ol id=\"fs-id1163757312365\">\r\n \t<li>allowed greater use of the power of eminent domain<\/li>\r\n \t<li>regulated popular ride-sharing services like Lyft and Uber<\/li>\r\n \t<li>limited the application of the death penalty<\/li>\r\n \t<li>made it harder for police to use evidence obtained without a warrant<\/li>\r\n<\/ol>\r\n[reveal-answer q=\"860722\"]Show Solution[\/reveal-answer]\r\n[hidden-answer a=\"860722\"]A[\/hidden-answer]\r\n\r\n<\/div>\r\n<div id=\"fs-id1163757567759\" class=\"solution\">\r\n<p id=\"fs-id1163757296880\">Which of the following rights is not protected by the Sixth Amendment?<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757576822\" class=\"exercise\">\r\n<div id=\"fs-id1163757304987\" class=\"problem\">\r\n<ol id=\"fs-id1163757614232\">\r\n \t<li>the right to trial by an impartial jury<\/li>\r\n \t<li>the right to cross-examine witnesses in a trial<\/li>\r\n \t<li>the right to remain silent<\/li>\r\n \t<li>the right to a speedy trial<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757282769\" class=\"exercise\">\r\n<div id=\"fs-id1163757352833\" class=\"problem\">\r\n<p id=\"fs-id1163757185949\">The double jeopardy rule in the Bill of Rights forbids which of the following?<\/p>\r\n\r\n<ol id=\"fs-id1163757368721\">\r\n \t<li>prosecuting someone in a state court for a criminal act he or she had been acquitted of in federal court<\/li>\r\n \t<li>prosecuting someone in federal court for a criminal act he or she had been acquitted of in a state court<\/li>\r\n \t<li>suing someone for damages for an act the person was found not guilty of<\/li>\r\n \t<li>none of these options<\/li>\r\n<\/ol>\r\n<\/div>\r\n<div id=\"fs-id1163757469708\" class=\"solution\">[reveal-answer q=\"631345\"]Show Solution[\/reveal-answer]\r\n[hidden-answer a=\"631345\"]D[\/hidden-answer]<\/div>\r\n<div><\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757301948\" class=\"exercise\">\r\n<div id=\"fs-id1163757272450\" class=\"problem\">\r\n<p id=\"fs-id1163757182331\">The Supreme Court has decided that the death penalty ________.<\/p>\r\n\r\n<ol id=\"fs-id1163757322260\">\r\n \t<li>is always cruel and unusual punishment<\/li>\r\n \t<li>is never cruel and unusual punishment<\/li>\r\n \t<li>may be applied only to acts of terrorism<\/li>\r\n \t<li>may not be applied to those who were under 18 when they committed a crime<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757315051\" class=\"exercise\">\r\n<div id=\"fs-id1163757327706\" class=\"problem\">\r\n<p id=\"fs-id1163757189695\">Explain why someone accused of a crime might negotiate a plea bargain rather than exercising the right to a trial by jury.<\/p>\r\n\r\n<\/div>\r\n<div id=\"fs-id1163757205134\" class=\"solution\">\r\n<p id=\"fs-id1163757186466\">[reveal-answer q=\"411401\"]Show Solution[\/reveal-answer]\r\n[hidden-answer a=\"411401\"]<\/p>\r\nSomeone accused of a crime may take a plea bargain because it reflects a clear path forward rather than the uncertainty of a trial. Typically plea bargains result in weaker punishments than does a court trial.[\/hidden-answer]\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"fs-id1163757287895\" class=\"exercise\">\r\n<div id=\"fs-id1163757318165\" class=\"problem\">\r\n<p id=\"fs-id1163757303888\">Explain the difference between a criminal case and a civil case.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<div class=\"textbox shaded\">\r\n<h2>Glossary<\/h2>\r\n<dl id=\"fs-id1163757288572\" class=\"definition\">\r\n \t<dt><strong>double jeopardy<\/strong><\/dt>\r\n \t<dd>a prosecution pursued twice at the same level of government for the same criminal action<\/dd>\r\n<\/dl>\r\n<dl id=\"fs-id1163757279484\" class=\"definition\">\r\n \t<dt><strong>economic liberty<\/strong><\/dt>\r\n \t<dd id=\"fs-id1163757368210\">the right of individuals to obtain, use, and trade things of value for their own benefit<\/dd>\r\n<\/dl>\r\n<dl id=\"fs-id1163757223886\" class=\"definition\">\r\n \t<dt><strong>eminent domain<\/strong><\/dt>\r\n \t<dd id=\"fs-id1163757186091\">the power of government to take or use property for a public purpose after compensating its owner; also known as the takings clause of the Fifth Amendment<\/dd>\r\n<\/dl>\r\n<dl id=\"fs-id1163757263120\" class=\"definition\">\r\n \t<dt><strong>Miranda warning<\/strong><\/dt>\r\n \t<dd id=\"fs-id1163757527275\">a statement by law enforcement officers informing a person arrested or subject to interrogation of his or her rights<\/dd>\r\n<\/dl>\r\n<dl id=\"fs-id1163757241496\" class=\"definition\">\r\n \t<dt><strong>plea bargain<\/strong><\/dt>\r\n \t<dd id=\"fs-id1163757186248\">an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial<\/dd>\r\n<\/dl>\r\n<dl id=\"fs-id1163757311510\" class=\"definition\">\r\n \t<dt><strong>self-incrimination<\/strong><\/dt>\r\n \t<dd id=\"fs-id1163757305475\">an action or statement that admits guilt or responsibility for a crime<\/dd>\r\n<\/dl>\r\n<\/div>","rendered":"<div class=\"textbox learning-objectives\">\n<h3>Learning Objectives<\/h3>\n<p id=\"fs-id1163755116544\">By the end of this section, you will be able to:<\/p>\n<ul id=\"fs-id1163757532926\">\n<li>Identify the rights of those suspected or accused of criminal activity<\/li>\n<li>Explain how Supreme Court decisions transformed the rights of the accused<\/li>\n<li>Explain why the Eighth Amendment is controversial regarding capital punishment<\/li>\n<\/ul>\n<\/div>\n<p id=\"fs-id1163755042273\">In addition to protecting the personal freedoms of individuals, the <strong><span class=\"no-emphasis\">Bill of Rights<\/span><\/strong> protects those suspected or accused of crimes from various forms of unfair or unjust treatment. The prominence of these protections in the Bill of Rights may seem surprising. Given the colonists\u2019 experience of what they believed to be unjust rule by British authorities, however, and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime\u2014no matter how unpopular\u2014is perhaps more understandable. What is more, the revolutionaries, and the eventual framers of the Constitution, wanted to keep the best features of English law as well.<\/p>\n<p id=\"fs-id1163757576394\">In addition to the protections outlined in the Fourth Amendment, which largely pertain to investigations conducted before someone has been charged with a crime, the next four amendments pertain to those suspected, accused, or convicted of crimes, as well as people engaged in other legal disputes. At every stage of the legal process, the Bill of Rights incorporates protections for these people.<\/p>\n<div id=\"fs-id1163757621135\" class=\"bc-section section\">\n<h2>THE FIFTH AMENDMENT<\/h2>\n<p id=\"fs-id1163757278020\">Many of the provisions dealing with the rights of the accused are included in the <strong><span class=\"no-emphasis\">Fifth Amendment<\/span><\/strong>; accordingly, it is one of the longest in the Bill of Rights. The Fifth Amendment states in full:<\/p>\n<blockquote id=\"fs-id1163757366718\" class=\"block\">\n<div>\u201cNo 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 offence 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.\u201d<\/div>\n<\/blockquote>\n<p id=\"fs-id1163755073146\">The first clause requires that serious crimes be prosecuted only after an indictment has been issued by a grand jury. However, several exceptions are permitted as a result of the evolving interpretation and understanding of this amendment by the courts, given the Constitution is a living document. First, the courts have generally found this requirement to apply only to felonies; less serious crimes can be tried without a grand jury proceeding. Second, this provision of the Bill of Rights does <em>not<\/em> apply to the states because it has not been incorporated; many states instead require a judge to hold a preliminary hearing to decide whether there is enough evidence to hold a full trial. Finally, members of the armed forces who are accused of crimes are not entitled to a grand jury proceeding.<\/p>\n<p id=\"fs-id1163757196373\">The Fifth Amendment also protects individuals against <strong>double jeopardy<\/strong>, a process that subjects a suspect to prosecution twice for the same criminal act. No one who has been acquitted (found not guilty) of a crime can be prosecuted again for that crime. But the prohibition against double jeopardy has its own exceptions. The most notable is that it prohibits a second prosecution only at the same level of government (federal or state) as the first; the federal government can try you for violating federal law, even if a state or local court finds you not guilty of the same action. For example, in the early 1990s, several Los Angeles police officers accused of brutally beating motorist Rodney <strong><span class=\"no-emphasis\">King<\/span><\/strong> during his arrest were acquitted of various charges in a state court, but some were later convicted in a federal court of violating King\u2019s civil rights.<\/p>\n<p id=\"fs-id1163755005288\">The double jeopardy rule does not prevent someone from recovering damages in a civil case\u2014a legal dispute between individuals over a contract or compensation for an injury\u2014that results from a criminal act, even if the person accused of that act is found not guilty. One famous case from the 1990s involved former football star and television personality O. J. <strong><span class=\"no-emphasis\">Simpson<\/span><\/strong>. Simpson, although acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a criminal court, was later found to be responsible for their deaths in a subsequent civil case and as a result was forced to forfeit most of his wealth to pay damages to their families.<\/p>\n<p id=\"fs-id1163755021928\">Perhaps the most famous provision of the Fifth Amendment is its protection against <strong>self-incrimination<\/strong>, or the right to remain silent. This provision is so well known that we have a phrase for it: \u201ctaking the Fifth.\u201d People have the right not to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not testify in his or her own defense, the prosecution cannot use that failure to testify as evidence of guilt or imply that an innocent person would testify. This provision became embedded in the public consciousness following the Supreme Court\u2019s 1966 ruling in <strong><span class=\"no-emphasis\"><em>Miranda v. Arizona<\/em><\/span><\/strong>, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody.<\/p>\n<div class=\"note reference\" style=\"text-align: center\">\n<div class=\"textbox shaded\">\n<hr \/>\n<p><em>Miranda v. Arizona<\/em>, 384 U.S. 436 (1966).<\/p>\n<\/div>\n<\/div>\n<p>However, contrary to some media depictions of the <strong>Miranda warning<\/strong>, law enforcement officials do not necessarily have to inform suspects of their rights before they are questioned in situations where they are free to leave.<\/p>\n<p id=\"fs-id1163755114914\">Like the Fourteenth Amendment\u2019s due process clause, the Fifth Amendment prohibits the federal government from depriving people of their \u201clife, liberty, or property, without due process of law.\u201d Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent, fair procedures to decide when people\u2019s freedoms are limited; in other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards comes into play for the legal prosecution of crimes. However, the Patriot Act, passed into law after the 9\/11 terrorist attacks, somewhat altered this notion.<\/p>\n<p id=\"fs-id1163757277168\">The final provision of the Fifth Amendment has little to do with crime at all. The <em>takings clause<\/em> says that \u201cprivate property [cannot] be taken for public use, without just compensation.\u201d This provision, along with the due process clause\u2019s provisions limiting the taking of property, can be viewed as a protection of individuals\u2019 <strong>economic liberty<\/strong>: their right to obtain, use, and trade tangible and intangible property for their own benefit. For example, you have the right to trade your knowledge, skills, and labor for money through work or the use of your property, or trade money or goods for other things of value, such as clothing, housing, education, or food.<\/p>\n<p id=\"fs-id1163757295212\">The greatest recent controversy over economic liberty has been sparked by cities\u2019 and states\u2019 use of the power of eminent domain to take property for redevelopment. Traditionally, the main use of <strong>eminent domain<\/strong> was to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require fairly straight routes to be efficient. Because any single property owner could effectively block a particular route or extract an unfair price for land if it was the last piece needed to assemble a route, there are reasonable arguments for using eminent domain as a last resort in these circumstances, particularly for projects that convey substantial benefits to the public at large.<\/p>\n<p id=\"fs-id1163755040156\">However, increasingly eminent domain has been used to allow economic development, with beneficiaries ranging from politically connected big businesses such as car manufacturers building new factories to highly profitable sports teams seeking ever-more-luxurious stadiums (Figure). And, while we traditionally think of property owners as relatively well-off people whose rights don\u2019t necessarily need protecting since they can fend for themselves in the political system, frequently these cases pit lower- and middle-class homeowners against multinational corporations or multimillionaires with the ear of city and state officials. In a notorious 2005 case, <strong><span class=\"no-emphasis\"><em>Kelo v. City of New London<\/em><\/span><\/strong>, the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical company\u2019s corporate campus.<\/p>\n<div class=\"note reference\" style=\"text-align: center\">\n<div class=\"textbox shaded\">\n<hr \/>\n<p><em>Kelo et al. v. City of New London et al.<\/em>, 545 U.S. 469 (2005).<\/p>\n<\/div>\n<\/div>\n<p>The case led to a public backlash against the use of eminent domain and legal changes in many states, making it harder for cities to take property from one private party and give it to another for economic redevelopment purposes.<\/p>\n<div id=\"OSC_AmGov_04_03_Stadium\" class=\"bc-figure figure\">\n<div style=\"width: 535px\" class=\"wp-caption aligncenter\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163046\/OSC_AmGov_04_03_Stadium.jpg\" alt=\"A photo of the inside of a football stadium, showing the field in the foreground and rows of empty seats in the background.\" width=\"525\" height=\"394\" \/><\/p>\n<p class=\"wp-caption-text\"><strong>Figure 1.\u00a0<\/strong>AT&amp;T Stadium in Arlington, Texas, sits on land taken by eminent domain. (credit: John Purget)<\/p>\n<\/div>\n<\/div>\n<p>&nbsp;<\/p>\n<p id=\"fs-id1163757275476\">Some disputes over economic liberty have gone beyond the idea of eminent domain. In the past few years, the emergence of on-demand ride-sharing services like Lyft and Uber, direct sales by electric car manufacturer Tesla Motors, and short-term property rentals through companies like Airbnb have led to conflicts between people seeking to offer profitable services online, states and cities trying to regulate these businesses, and the incumbent service providers that compete with these new business models. In the absence of new public policies to clarify rights, the path forward is often determined through norms established in practice, by governments, or by court cases.<\/p>\n<\/div>\n<div id=\"fs-id1163755040339\" class=\"bc-section section\">\n<h2>THE SIXTH AMENDMENT<\/h2>\n<p id=\"fs-id1163757321000\">Once someone has been charged with a crime and indicted, the next stage in a criminal case is typically the trial itself, unless a plea bargain is reached. The <strong><span class=\"no-emphasis\">Sixth Amendment<\/span><\/strong> contains the provisions that govern criminal trials; in full, it states:<\/p>\n<blockquote id=\"fs-id1163757324184\" class=\"block\">\n<div>\u201cIn 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 defence [sic].\u201d<\/div>\n<\/blockquote>\n<p id=\"fs-id1163757195556\">The first of these guarantees is the right to have a speedy, public trial by an impartial jury. Although there is no absolute limit on the length of time that may pass between an indictment and a trial, the Supreme Court has said that excessively lengthy delays must be justified and balanced against the potential harm to the defendant.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>See, for example, <em>Barker v. Wingo<\/em>, 407 U.S. 514 (1972).<\/p>\n<\/div>\n<p>In effect, the speedy trial requirement protects people from being detained indefinitely by the government. Yet the courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant\u2019s right to a fair trial, it can be held behind closed doors, while prosecutors can request closed proceedings only in certain, narrow circumstances (generally, to protect witnesses from retaliation or to guard classified information). In general, a prosecution must also be made in the \u201cstate and district\u201d where the crime was committed; however, people accused of crimes may ask for a change of venue for their trial if they believe pre-trial publicity or other factors make it difficult or impossible for them to receive a fair trial where the crime occurred.<\/p>\n<\/div>\n<div class=\"textbox shaded\">\n<hr \/>\n<p>Although the Supreme Court\u2019s proceedings are not televised and there is no video of the courtroom, audio recordings of the oral arguments and decisions announced in cases have been made since 1955. A complete collection of these recordings can be found at the <a href=\"https:\/\/www.openstaxcollege.org\/l\/29oyezproject\">Oyez Project<\/a> website along with full information about each case.<\/p>\n<\/div>\n<p id=\"fs-id1163757193796\">Most people accused of crimes decline their right to a jury trial. This choice is typically the result of a <strong>plea bargain<\/strong>, an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perhaps to less serious charges, in exchange for more lenient punishment than he or she might receive if convicted after a full trial. There are a number of reasons why this might happen. The evidence against the accused may be so overwhelming that conviction is a near-certainty, so he or she might decide that avoiding the more serious penalty (perhaps even the death penalty) is better than taking the small chance of being acquitted after a trial. Someone accused of being part of a larger crime or criminal organization might agree to testify against others in exchange for lighter punishment. At the same time, prosecutors might want to ensure a win in a case that might not hold up in court by securing convictions for offenses they know they can prove, while avoiding a lengthy trial on other charges they might lose.<\/p>\n<p id=\"fs-id1163757186415\">The requirement that a jury be impartial is a critical requirement of the Sixth Amendment. Both the prosecution and the defense are permitted to reject potential jurors who they believe are unable to fairly decide the case without prejudice. However, the courts have also said that the composition of the jury as a whole may in itself be prejudicial; potential jurors may not be excluded simply because of their race or sex, for example.<\/p>\n<div class=\"note reference\" style=\"text-align: center\">\n<div class=\"textbox shaded\">\n<hr \/>\n<p>See, for example, <em>Batson v. Kentucky<\/em>, 476 U.S. 79 (1986); <em>J. E. B. v. Alabama ex rel. T. B.<\/em>, 511 U.S. 127 (1994).<\/p>\n<\/div>\n<p style=\"text-align: left\">The Sixth Amendment guarantees the right of those accused of crimes to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by the prosecution. In general, the only testimony acceptable in a criminal trial must be given in a courtroom and be subject to cross-examination; hearsay, or testimony by one person about what another person has said, is generally inadmissible, although hearsay may be presented as evidence when it is an admission of guilt by the defendant or a \u201cdying declaration\u201d by a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.<\/p>\n<\/div>\n<p id=\"fs-id1163757285428\">Finally, the Sixth Amendment guarantees the right of those accused of crimes to have the assistance of an attorney in their defense. Historically, many states did not provide attorneys to those accused of most crimes who could not afford one themselves; even when an attorney was provided, his or her assistance was often inadequate at best. This situation changed as a result of the Supreme Court\u2019s decision in <span class=\"no-emphasis\"><em>Gideon v. Wainwright<\/em><\/span> (1963).<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p><em>Gideon v. Wainwright<\/em>, 372 U.S. 335 (1963).<\/p>\n<\/div>\n<\/div>\n<p>Clarence <strong><span class=\"no-emphasis\">Gideon<\/span><\/strong>, a poor drifter, was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried and convicted and sentenced to a five-year prison term. While in prison\u2014still without assistance of a lawyer\u2014he drafted a handwritten appeal and sent it to the Supreme Court, which agreed to hear his case (Figure). The justices unanimously ruled that Gideon, and anyone else accused of a serious crime, was entitled to the assistance of a lawyer, even if they could not afford one, as part of the general due process right to a fair trial.<\/p>\n<div id=\"OSC_AmGov_04_03_Gideon\" class=\"bc-figure figure\">\n<div style=\"width: 757px\" class=\"wp-caption aligncenter\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163054\/OSC_AmGov_04_03_Gideon.jpg\" alt=\"Photo A is of a handwritten petition. Photo B is of Clarence Gideon.\" width=\"747\" height=\"561\" \/><\/p>\n<p class=\"wp-caption-text\"><strong>Figure 2.\u00a0<\/strong>The handwritten petition for appeal (a) sent to the Supreme Court by Clarence Gideon, shown here circa 1961 (b), the year of his Florida arrest for breaking and entering.<\/p>\n<\/div>\n<\/div>\n<p>The Supreme Court later extended the <em>Gideon v. Wainwright<\/em> ruling to apply to any case in which an accused person faced the possibility of \u201closs of liberty,\u201d even for one day. The courts have also overturned convictions in which people had incompetent or ineffective lawyers through no fault of their own. The <em>Gideon<\/em> ruling has led to an increased need for professional public defenders, lawyers who are paid by the government to represent those who cannot afford an attorney themselves, although some states instead require practicing lawyers to represent poor defendants on a pro bono basis (essentially, donating their time and energy to the case).<span id=\"fs-id1163757311766\"><br \/>\n<\/span><\/p>\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>The <a href=\"https:\/\/www.openstaxcollege.org\/l\/29publicdefend\">National Association for Public Defense<\/a> represents public defenders, lobbying for better funding for public defense and improvements in the justice system in general.<\/p>\n<\/div>\n<div id=\"fs-id1163757274244\" class=\"note insider-perspective\">\n<div class=\"title\">\n<div class=\"textbox shaded\">\n<h3 class=\"title\">Criminal Justice: Theory Meets Practice<\/h3>\n<p id=\"fs-id1163757370322\">Typically a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against him or her, to be made aware of the right to counsel, and to enter a plea. Other hearings may be held to decide on the admissibility of evidence seized or otherwise obtained by prosecutors.<\/p>\n<p id=\"fs-id1163757273623\">If the two sides cannot agree on a plea bargain during this period, the next stage is the selection of a jury. A pool of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in most states) and one or two alternates. All hear the evidence in the trial; unless an alternate must serve, the original twelve decide whether the evidence overwhelmingly points toward guilt or innocence beyond a reasonable doubt.<\/p>\n<p id=\"fs-id1163757311644\">In the trial itself, the lawyers for the prosecution and defense make opening arguments, followed by testimony by witnesses for the prosecution (and any cross-examination), and then testimony by witnesses for the defense, including the defendant if he or she chooses. Additional prosecution witnesses may be called to rebut testimony by the defense. Finally, both sides make closing arguments. The judge then issues instructions to the jury, including an admonition not to discuss the case with anyone outside the jury room. The jury members leave the courtroom to enter the jury room and begin their deliberations (Figure).<\/p>\n<div id=\"OSC_AmGov_04_03_Courtroom\" class=\"bc-figure figure\">\n<div style=\"width: 535px\" class=\"wp-caption aligncenter\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163100\/OSC_AmGov_04_03_Courtroom.jpg\" alt=\"A photo of a typical courtroom, empty of people. In the foreground are benches for attendees, then two tables in the center for the defense and prosecution, and in the background the judge\u2019s stand. To the left of the judge\u2019s stand is a row of chairs for the jury, and to the right of the judge\u2019s stand is the witness stand.\" width=\"525\" height=\"347\" \/><\/p>\n<p class=\"wp-caption-text\"><strong>Figure 3.\u00a0<\/strong>A typical courtroom in the United States. The jury sits along one side, between the judge\/witness stand and the tables for the defense and prosecution.<\/p>\n<\/div>\n<\/div>\n<p>&nbsp;<\/p>\n<p id=\"fs-id1163757469882\">The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review evidence or to hear transcripts of testimony. They deliberate in secret and their decision must be unanimous; if they are unable to agree on a verdict after extensive deliberation, a mistrial may be declared, which in effect requires the prosecution to try the case all over again.<\/p>\n<p id=\"fs-id1163757310790\">A defendant found not guilty of all charges will be immediately released unless other charges are pending (e.g., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of one or more offenses, the judge will choose an appropriate sentence based on the law and the circumstances; in the federal system, this sentence will typically be based on guidelines that assign point values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should be subject to capital punishment or life imprisonment.<\/p>\n<p id=\"fs-id1163757188149\">The reality of court procedure is much less dramatic and exciting than what is typically portrayed in television shows and movies. Nonetheless, most Americans will participate in the legal system at least once in their lives as a witness, juror, or defendant.<\/p>\n<p id=\"fs-id1163754996162\"><em>Have you or any member of your family served on a jury? If so, was the experience a positive one? Did the trial proceed as expected? If you haven\u2019t served on a jury, is it something you look forward to? Why or why not?<\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757230421\" class=\"bc-section section\">\n<h2>THE SEVENTH AMENDMENT<\/h2>\n<p id=\"fs-id1163757303383\">The <strong><span class=\"no-emphasis\">Seventh Amendment<\/span><\/strong> deals with the rights of those engaged in civil disputes; as noted earlier, these are disagreements between individuals or businesses in which people are typically seeking compensation for some harm caused. For example, in an automobile accident, the person responsible is compelled to compensate any others (either directly or through his or her insurance company). Much of the work of the legal system consists of efforts to resolve civil disputes. The Seventh Amendment, in full, reads:<\/p>\n<blockquote id=\"fs-id1163757248337\" class=\"block\">\n<div>\u201cIn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.\u201d<\/div>\n<\/blockquote>\n<p id=\"fs-id1163757246552\">Because of this provision, all trials in civil cases must take place before a jury unless both sides waive their right to a jury trial. However, this right is not always incorporated; in many states, civil disputes\u2014particularly those involving small sums of money, which may be heard by a dedicated small claims court\u2014need not be tried in front of a jury and may instead be decided by a judge working alone.<\/p>\n<p id=\"fs-id1163757282248\">The Seventh Amendment limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury. For example, if a jury decides a person was responsible for an action and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional common-law distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular case.<\/p>\n<\/div>\n<div class=\"bc-section section\">\n<h1>THE EIGHTH AMENDMENT<\/h1>\n<p id=\"fs-id1163757614129\">The <strong><span class=\"no-emphasis\">Eighth Amendment<\/span><\/strong> says, in full:<\/p>\n<blockquote id=\"fs-id1163757622991\" class=\"block\">\n<div>\u201cExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\u201d<\/div>\n<\/blockquote>\n<p><em>Bail<\/em> is a payment of money that allows a person accused of a crime to be freed pending trial; if you \u201cmake bail\u201d in a case and do not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay <span class=\"no-emphasis\">bail<\/span> directly, they may instead get a <em>bail bond<\/em>, which allows them to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, people believed likely to flee or who represent a risk to the community while free may be denied bail and held in jail until their trial takes place.<\/p>\n<p id=\"fs-id1163757230648\">It is rare for bail to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one \u201cso grossly excessive as to amount to deprivation of property without due process of law\u201d or \u201cgrossly disproportional to the gravity of a defendant\u2019s offense.\u201d<\/p>\n<div class=\"note reference\" style=\"text-align: center\">\n<div class=\"textbox shaded\">\n<hr \/>\n<p><em>Waters-Pierce Oil Co. v. Texas<\/em>, 212 U.S. 86 (1909); <em>United States v. Bajakajian<\/em>, 524 U.S. 321 (1998).<\/p>\n<\/div>\n<\/div>\n<p>In practice the courts have rarely struck down fines as excessive either.<\/p>\n<p id=\"fs-id1163757298414\">The most controversial provision of the Eighth Amendment is the ban on \u201ccruel and unusual punishments.\u201d Various torturous forms of execution common in the past\u2014drawing and quartering, burning people alive, and the like\u2014are prohibited by this provision.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>See, for example, the discussion in <em>Wilkerson v. Utah<\/em>, 99 U.S. 130 (1879).<\/p>\n<\/div>\n<\/div>\n<p>Recent controversies over lethal injections and firing squads to administer the death penalty suggest the topic is still salient. While the Supreme Court has never established a definitive test for what constitutes a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when to outside observers the punishment might be reasonably seen as disproportionate or excessive.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>Perhaps the most notorious example, <em>Harmelin v. Michigan<\/em>, 501 U.S. 957 (1991), upheld a life sentence in a case where the defendant was convicted of possessing just over one pound of cocaine (and no other crime).<\/p>\n<\/div>\n<\/div>\n<p id=\"fs-id1163757240994\">In recent years the Supreme Court has issued a series of rulings substantially narrowing the application of the death penalty. As a result, defendants who have mental disabilities may not be executed.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p><em>Atkins v. Virginia<\/em>, 536 U.S. 304 (2002).<\/p>\n<\/div>\n<\/div>\n<p>Also, defendants who were under eighteen when they committed an offense that is otherwise subject to the death penalty may not be executed.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p><em>Roper v. Simmons<\/em>, 543 U.S. 551 (2005).<\/p>\n<\/div>\n<\/div>\n<p>The court has generally rejected the application of the death penalty to crimes that did not result in the death of another human being, most notably in the case of rape.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p><em>Kennedy v. Louisiana<\/em>, 554 U.S. 407 (2008).<\/p>\n<\/div>\n<p>And, while permitting the death penalty to be applied to murder in some cases, the Supreme Court has generally struck down laws that require the application of the death penalty in certain circumstances. Still, the United States is among ten countries with the most executions worldwide (Figure).<\/p>\n<\/div>\n<div id=\"OSC_AmGov_04_03_Executions\" class=\"bc-figure figure\">\n<div style=\"width: 985px\" class=\"wp-caption aligncenter\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images\/wp-content\/uploads\/sites\/2292\/2017\/08\/08163108\/OSC_AmGov_04_03_Executions.jpg\" alt=\"Chart showing the rate of execution in the 10 countries with the highest execution rates. The chart is titled \u201cRate of Execution in the 10 Countries with the Most Executions, 2007 \u2013 2012\u201d. The chart is divided into three columns, \u201cCountry\u201d, \u201cNumber of annual executions, on average\u201d, and \u201cNumber of annual executions, per capita\u201d. Under the first column \u201cCountry\u201d are the values \u201cIran\u201d, \u201cSaudi Arabia\u201d, \u201cIraq\u201d, \u201cChina\u201d, \u201cLibya\u201d, \u201cYemen\u201d, \u201cNorth Korea\u201d, \u201cPakistan\u201d, \u201cUnited States\u201d, and \u201cVietnam\u201d. Under the second column \u201cNumber of annual executions, on average\u201d are the values \u201c277.2\u201d, \u201c70.5\u201d, \u201c42.7\u201d, \u201c1720-2400\u201d, \u201c6.5\u201d, \u201c25.3\u201d, \u201c17.5\u201d, \u201c28.5\u201d, \u201c36.7,\u201d and \u201c9.7\u201d. Under the third column \u201cNumber of annual executions, per capita\u201d are the values \u201c0.000381%\u201d, \u201c0.000257%\u201d, \u201c0.000157%\u201d, \u201c0.000129-0.000180% (estimate)\u201d, \u201c0.000116%\u201d, \u201c0.000109%\u201d, \u201c0.000073%\u201d, \u201c0.000016%\u201d, \u201c0.000012%\u201d, and \u201c0.000001%\u201d. At the bottom of the chart the source is listed as \u201cSource: Amnesty International, \u201cDeath Penalty Statistics, Country by Country.\u201d 2012\u201d.\" width=\"975\" height=\"796\" \/><\/p>\n<p class=\"wp-caption-text\"><strong>Figure 4.\u00a0<\/strong>The United States has the ninth highest per capita rate of execution in the world.<\/p>\n<\/div>\n<\/div>\n<p id=\"fs-id1163757274808\">At the same time, however, it appears that the public mood may have shifted somewhat against the death penalty, perhaps due in part to an overall decline in violent crime. The reexamination of past cases through DNA evidence has revealed dozens in which people were wrongfully executed.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>Elizabeth Lopatto, \u201cHow Many Innocent People Are Sentenced To Death?,\u201d <em>Forbes<\/em>, 29 April 2014. <a href=\"http:\/\/www.forbes.com\/sites\/elizabethlopatto\/2014\/04\/29\/how-many-innocent-people-are-sentenced-to-death\/#6e9ae5175cc1\">http:\/\/www.forbes.com\/sites\/elizabethlopatto\/2014\/04\/29\/how-many-innocent-people-are-sentenced-to-death\/#6e9ae5175cc1<\/a> (March 1, 2016).<\/p>\n<\/div>\n<\/div>\n<p>For example, Claude <strong><span class=\"no-emphasis\">Jones<\/span><\/strong> was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his; however, with better DNA testing technology, it was later found to be that of the victim.<\/p>\n<div class=\"note reference\">\n<div class=\"textbox shaded\" style=\"text-align: center\">\n<hr \/>\n<p>Dave Mann, \u201cDNA Tests Undermine Evidence in Texas Execution: New Results Show Claude Jones was Put to Death on Flawed Evidence,\u201d <em>Texas Observer<\/em>, 11 November 2010. <a href=\"http:\/\/www.texasobserver.org\/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution\/\">http:\/\/www.texasobserver.org\/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution\/<\/a> (March 4, 2016).<\/p>\n<\/div>\n<p>Perhaps as a result of this and other cases, seven additional states have abolished capital punishment since 2007. As of 2015, nineteen states and the District of Columbia no longer apply the death penalty in new cases, and several other states do not carry out executions despite sentencing people to death.<\/p>\n<\/div>\n<div class=\"note reference\">\n<div class=\"textbox shaded\">See, for example, \u201cStates With and Without the Death Penalty,\u201d Death Penalty Information Center, <a href=\"http:\/\/www.deathpenaltyinfo.org\/states-and-without-death-penalty\">http:\/\/www.deathpenaltyinfo.org\/states-and-without-death-penalty<\/a> (March 4, 2016).<\/div>\n<p>It remains to be seen whether this gradual trend toward the elimination of the death penalty by the states will continue, or whether the Supreme Court will eventually decide to follow former Justice Harry <strong><span class=\"no-emphasis\">Blackmun<\/span><\/strong>\u2019s decision to \u201cno longer\u2026 tinker with the machinery of death\u201d and abolish it completely.<\/p>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757268463\" class=\"summary\">\n<p id=\"fs-id1163757272935\">The rights of those suspected, accused, and convicted of crimes, along with rights in civil cases and economic liberties, are protected by the second major grouping of amendments within the Bill of Rights. The Fifth Amendment secures various procedural safeguards, protects suspects\u2019 right to remain silent, forbids trying someone twice at the same level of government for the same criminal act, and limits the taking of property for public uses. The Sixth Amendment ensures fairness in criminal trials, including through a fair and speedy trial by an impartial jury, the right to assistance of counsel, and the right to examine and compel testimony from witnesses. The Seventh Amendment ensures the right to jury trials in most civil cases (but only at the federal level). Finally, the Eighth Amendment prohibits excessive fines and bails, as well as \u201ccruel and unusual punishments,\u201d although the scope of what is cruel and unusual is subject to debate.<\/p>\n<\/div>\n<div id=\"fs-id1163757528969\" class=\"review-questions\">\n<div id=\"fs-id1163757575069\" class=\"exercise\">\n<div id=\"fs-id1163757285288\" class=\"problem\">\n<div class=\"textbox shaded\">\n<div id=\"fs-id1163757575069\" class=\"exercise\">\n<div id=\"fs-id1163757285288\" class=\"problem\">\n<p id=\"fs-id1163757357586\">The Supreme Court case known as <em>Kelo v. City of New London<\/em> was controversial because it ________.<\/p>\n<ol id=\"fs-id1163757312365\">\n<li>allowed greater use of the power of eminent domain<\/li>\n<li>regulated popular ride-sharing services like Lyft and Uber<\/li>\n<li>limited the application of the death penalty<\/li>\n<li>made it harder for police to use evidence obtained without a warrant<\/li>\n<\/ol>\n<div class=\"qa-wrapper\" style=\"display: block\"><span class=\"show-answer collapsed\" style=\"cursor: pointer\" data-target=\"q860722\">Show Solution<\/span><\/p>\n<div id=\"q860722\" class=\"hidden-answer\" style=\"display: none\">A<\/div>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757567759\" class=\"solution\">\n<p id=\"fs-id1163757296880\">Which of the following rights is not protected by the Sixth Amendment?<\/p>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757576822\" class=\"exercise\">\n<div id=\"fs-id1163757304987\" class=\"problem\">\n<ol id=\"fs-id1163757614232\">\n<li>the right to trial by an impartial jury<\/li>\n<li>the right to cross-examine witnesses in a trial<\/li>\n<li>the right to remain silent<\/li>\n<li>the right to a speedy trial<\/li>\n<\/ol>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757282769\" class=\"exercise\">\n<div id=\"fs-id1163757352833\" class=\"problem\">\n<p id=\"fs-id1163757185949\">The double jeopardy rule in the Bill of Rights forbids which of the following?<\/p>\n<ol id=\"fs-id1163757368721\">\n<li>prosecuting someone in a state court for a criminal act he or she had been acquitted of in federal court<\/li>\n<li>prosecuting someone in federal court for a criminal act he or she had been acquitted of in a state court<\/li>\n<li>suing someone for damages for an act the person was found not guilty of<\/li>\n<li>none of these options<\/li>\n<\/ol>\n<\/div>\n<div id=\"fs-id1163757469708\" class=\"solution\">\n<div class=\"qa-wrapper\" style=\"display: block\"><span class=\"show-answer collapsed\" style=\"cursor: pointer\" data-target=\"q631345\">Show Solution<\/span><\/p>\n<div id=\"q631345\" class=\"hidden-answer\" style=\"display: none\">D<\/div>\n<\/div>\n<\/div>\n<div><\/div>\n<\/div>\n<div id=\"fs-id1163757301948\" class=\"exercise\">\n<div id=\"fs-id1163757272450\" class=\"problem\">\n<p id=\"fs-id1163757182331\">The Supreme Court has decided that the death penalty ________.<\/p>\n<ol id=\"fs-id1163757322260\">\n<li>is always cruel and unusual punishment<\/li>\n<li>is never cruel and unusual punishment<\/li>\n<li>may be applied only to acts of terrorism<\/li>\n<li>may not be applied to those who were under 18 when they committed a crime<\/li>\n<\/ol>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757315051\" class=\"exercise\">\n<div id=\"fs-id1163757327706\" class=\"problem\">\n<p id=\"fs-id1163757189695\">Explain why someone accused of a crime might negotiate a plea bargain rather than exercising the right to a trial by jury.<\/p>\n<\/div>\n<div id=\"fs-id1163757205134\" class=\"solution\">\n<p id=\"fs-id1163757186466\">\n<div class=\"qa-wrapper\" style=\"display: block\"><span class=\"show-answer collapsed\" style=\"cursor: pointer\" data-target=\"q411401\">Show Solution<\/span><\/p>\n<div id=\"q411401\" class=\"hidden-answer\" style=\"display: none\">\n<p>Someone accused of a crime may take a plea bargain because it reflects a clear path forward rather than the uncertainty of a trial. Typically plea bargains result in weaker punishments than does a court trial.<\/p><\/div>\n<\/div>\n<\/div>\n<\/div>\n<div id=\"fs-id1163757287895\" class=\"exercise\">\n<div id=\"fs-id1163757318165\" class=\"problem\">\n<p id=\"fs-id1163757303888\">Explain the difference between a criminal case and a civil case.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<div class=\"textbox shaded\">\n<h2>Glossary<\/h2>\n<dl id=\"fs-id1163757288572\" class=\"definition\">\n<dt><strong>double jeopardy<\/strong><\/dt>\n<dd>a prosecution pursued twice at the same level of government for the same criminal action<\/dd>\n<\/dl>\n<dl id=\"fs-id1163757279484\" class=\"definition\">\n<dt><strong>economic liberty<\/strong><\/dt>\n<dd id=\"fs-id1163757368210\">the right of individuals to obtain, use, and trade things of value for their own benefit<\/dd>\n<\/dl>\n<dl id=\"fs-id1163757223886\" class=\"definition\">\n<dt><strong>eminent domain<\/strong><\/dt>\n<dd id=\"fs-id1163757186091\">the power of government to take or use property for a public purpose after compensating its owner; also known as the takings clause of the Fifth Amendment<\/dd>\n<\/dl>\n<dl id=\"fs-id1163757263120\" class=\"definition\">\n<dt><strong>Miranda warning<\/strong><\/dt>\n<dd id=\"fs-id1163757527275\">a statement by law enforcement officers informing a person arrested or subject to interrogation of his or her rights<\/dd>\n<\/dl>\n<dl id=\"fs-id1163757241496\" class=\"definition\">\n<dt><strong>plea bargain<\/strong><\/dt>\n<dd id=\"fs-id1163757186248\">an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial<\/dd>\n<\/dl>\n<dl id=\"fs-id1163757311510\" class=\"definition\">\n<dt><strong>self-incrimination<\/strong><\/dt>\n<dd id=\"fs-id1163757305475\">an action or statement that admits guilt or responsibility for a crime<\/dd>\n<\/dl>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-111\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>OpenStax American Government. <strong>Provided by<\/strong>: OpenStax CNX. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/cnx.org\/contents\/5bcc0e59-7345-421d-8507-a1e4608685e8@18.14\">http:\/\/cnx.org\/contents\/5bcc0e59-7345-421d-8507-a1e4608685e8@18.14<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by\/4.0\/\">CC BY: Attribution<\/a><\/em>. <strong>License Terms<\/strong>: Download for free at http:\/\/cnx.org\/contents\/5bcc0e59-7345-421d-8507-a1e4608685e8@18.14<\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":17533,"menu_order":4,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"OpenStax American Government\",\"author\":\"\",\"organization\":\"OpenStax CNX\",\"url\":\"http:\/\/cnx.org\/contents\/5bcc0e59-7345-421d-8507-a1e4608685e8@18.14\",\"project\":\"\",\"license\":\"cc-by\",\"license_terms\":\"Download for free at http:\/\/cnx.org\/contents\/5bcc0e59-7345-421d-8507-a1e4608685e8@18.14\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":"cc-by"},"chapter-type":[],"contributor":[],"license":[50],"class_list":["post-111","chapter","type-chapter","status-publish","hentry","license-cc-by"],"part":89,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapters\/111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/wp\/v2\/users\/17533"}],"version-history":[{"count":9,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapters\/111\/revisions"}],"predecessor-version":[{"id":832,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapters\/111\/revisions\/832"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/parts\/89"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapters\/111\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/wp\/v2\/media?parent=111"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/pressbooks\/v2\/chapter-type?post=111"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/wp\/v2\/contributor?post=111"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-osamgovernment\/wp-json\/wp\/v2\/license?post=111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}