In the American legal tradition rights under the law encompass both enumerated and implied rights held by individuals singularly and collectively. In the context of criminal law, the majority of defendants’ rights are found in the Bill of Rights of the Constitution. However, individual states can provide greater rights than those prescribed by the federal Constitution. Initially the rights contained in the Constitution were not held to apply to state criminal proceedings. Indeed, not all of the rights enumerated in the Bill of Rights have been incorporated against the states. Defendant rights that have not been incorporated against the states include the Fifth Amendment right to indictment by grand jury presentment and the Sixth Amendment right to a “jury of the state and district wherein the crime shall have been committed,” although the general right to a jury has been incorporated. Those rights that have been incorporated against the states have done so via the Due Process Clause of the Fourteenth Amendment. These rights apply to all aspects of the criminal proceedings from investigation through sentencing.
Although the burgeoning of defendants’ rights in the second half of the 20th century can lead to the impression that this is a relatively new phenomenon, many of these rights have a deeper history in the Anglo-American legal tradition. The right to a jury trial can be traced to the 13thcentury abolition of trial by ordeal by the Fourth Latrine Council; however, in England and colonial America the jury still had to be selected by the defendant. It was not until the 18th century in the United States that a defendant who stood mute was held to have pled not guilty and elected to undergo trial by jury. The option remains in many states for a defendant to elect to be tried by the bench. The rights of speedy trial and due process of law can be traced to the Magna Carta. The right against double jeopardy has no clear origin, but can be traced back to at least the 15th century English yearbooks of cases. Similarly, the roots of the prohibition against torture is not clear. Although limited torture was allowed in cases of treason for the purpose of discovering co-conspirators, it was rarely invoked. The writ of habeas corpus is interesting as the original writ of habeas corpus ad respondum was initially designed for the purpose of compelling a criminal defendant to appear for trial. Over the centuries it evolved into a writ to challenge imprisonment and was extended as such to all criminal defendants by the Habeas Corpus Act of 1679.
In colonial America defendants’ rights were expanded as the colonists built on the existing rights held by English subjects. The colonists maintained the existing rights, while adding the right to counsel, the right to compel and swear witnesses on behalf of the defendant, and the right against self-incrimination. It is not clear how often these rights were invoked or how rigorously they were upheld.
Several scholars have suggested that the key change to the assertion of defendants’ rights came in response to the abuses during the reign of King James II, especially following his ouster in the Revolution of 1688. The English Bill of Rights (1689), passed following the revolution, reiterated previous rights as well as adding the right against cruel and unusual punishment, which the Eight Amendment quotes almost verbatim. The Treason Trials Act (1695) allowed defendants in treason cases to have council. At the same time several American colonies enshrined the right to counsel for all felonies. In an interesting quirk of legal development, at no time was defense counsel not allowed for misdemeanor cases under the common law. The inclusion of lawyers in criminal cases radically altered their composition and began to lead to a greater assertion of defendants’ rights.
Early Criminal Trials
Criminal trials in America until the 1750s were of a perfunctory nature lasting as little as a few minutes. Indeed, felony criminal trials in England lasted as little as 15 minutes, even when the defendant faced capital punishment, into the mid-19th century. The addition of defense counsel allowed for the creation of the right to remain silent. Until that time the method of trial required the accused to speak in their own defense as there was no one else to speak for them. In addition, a defendant lacking legal training would not know what rights they could assert, when it was appropriate to assert them, or how to do so. The addition of defense counsel allowed for greater assertion of rights, but the trade-offs were longer and more costly trials. These rights were gathered together into the Constitution of the United States and its Bill of Rights.
Rights and the Amendments
The Fourth Amendment.
The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures and requires that warrants be issued only upon probable cause “and particularly describing the place to be searched and the persons or things to be seized.” For a warrant to be valid it must be based on more than reasonable suspicion, which is determined by looking at the total sum of facts alleged. In Rochin v. California (1952), the Supreme Court stated that when police engage in search conduct that shocks the conscience, the evidence obtained will be excluded from being used as evidence against the defendant. In Mapp v. Ohio (1961), the court extended the exclusionary rule to apply in all cases of searches without warrants at the state level. The doctrine of the fruit of the poisonous tree also excludes evidence obtained or derived from the illegal evidence unless it can be shown that there would have been inevitable discovery, an independent source, or an intervening act of free will by the defendant.
The three key aspects in determining search and seizure cases are if the defendant has standing to challenge the search, if the item was held out to the public, and if there was state action. It has been held that overnight guests have standing to challenge a search (Minnesota v. Olson, 1990), a business owner has standing to challenge the search of his business (Jones v. United States, 1960), an employee can challenge the search of his workplace (Mancusi v. DeForte, 1968), but passengers in a car that don’t own the car or claim to own anything in the car do not have standing (Rakas v. Illinois, 1978). In fact, ownership of an item is only a factor in determining if someone has standing to challenge a search. Items held out to the public have no reasonable expectation of privacy and therefore a search warrant is not needed. The court has held that the sound of one’s voice, handwriting samples, scents emanating from a bag, paint samples from the outside of the car, a car on an open road, and anything that can be seen in plain sight or across an open field or from an airplane are held out to the public. However, the court has held that thermal imaging devices or any sensory enhancing technology not generally in public use requires a warrant (U.S. v. Kyllo, 2001). Recently the court has held that attaching a global positioing system (GPS) tracking devise to a car for purposes of tracking its movements constitutes a search (United States v. Jones, 2012), as does having a trained drug dog sniffing the front door of a house that police suspect contains drugs (Florida v. Jardines, 2013). The advancement of technology will ensure that the scope of the warrant requirement will always remain contested, while the remedy of exclusion will ensure that it remains a heated contestation.
The Fifth Amendment
The Fifth Amendment’s due process clause acts to ensure that all parts of the criminal proceeding are fairly applied to criminal defendants. This means that the right to due process can be invoked to challenge any part of the process that is prejudicial to the defendant. It also means that it is often invoked in conjunction with the other rights. An example of rights that have been created under the due process clause of the Fifth Amendment is the area of witness identification of defendants. Due process has been invoked to bar unnecessarily suggestive methods that have a substantial likelihood of misidentification.
The concept behind the Fifth Amendment’s prohibition of double jeopardy is that it is unfair to try a person twice for the same crime or for the state to retry them in order to obtain a conviction. Issues surrounding this right arise from disagreements over when jeopardy attaches in a proceeding, what constitutes the same criminal act, and if it is the same jurisdiction trying the individual. In a jury trial jeopardy attaches when the jury is sworn and in a bench trial when the first witness is sworn. It is a general rule that two crimes do not constitute the same offense for double jeopardy if each crime requires proof of an additional element. For example, a defendant could be tried for manslaughter and a hit-and-run accident stemming from the same incident. A defendant can be tried for a lesser included offense at the same time as the greater offense (e.g., or murder and manslaughter), but being put on trial for a greater offense bars later retrial for the lesser offense and vice versa. The exceptions to double jeopardy are the reinstating of charges against a defendant who backs out of plea bargain, which the court upheld in Rickets v. Adamson (1987), and the retrial of a defendant after a successful appeal, which is held to be continuing jeopardy from the original trial.
The final right granted in the Fifth Amendment is the right against self-incrimination, which has the corollary right to remain silent. The ability of a defendant to assert their rights has always been a problem in the criminal justice process. The introduction of defense counsel served to solve this problem at trial, but as many of the rights described above relate to the investigative process of criminal procedure the defendant must be made aware of their rights in order to assert them. This was the assertion of Ernesto Miranda and his lawyers following the admittance of his confession at his trial, which led to his conviction for rape and kidnapping. In 1966 the Supreme Court held in Miranda v. Arizona (1966) that custodial interrogations by police are inherently coercive and that a defendant must be informed of their rights before interrogation can begin. The warnings have proven controversial since first implemented, with many viewing errors in the warnings as an unfair method by which guilty persons escape justice. There have been several attempts to limit the scope of the warnings, but the essential warnings have withstood challenges.
The issue of confessions implicates both the Fifth Amendment right against self-incrimination and the Sixth Amendment’s right to counsel. It has been held that all confessions must be informed and voluntary. To determine voluntariness the court looks to age, education, mental capacity of the defendant, physical condition of the defendant, interrogation methods, and tactics of the police. The court has excluded confessions in which the police masqueraded as a psychologist to obtain a confession (Leyra v. Denno, 1954), used a childhood friend to obtain the confession (Spano v. New York, 1959), and when police appealed to the defendant’s religious beliefs (Brewer v. Williams, 1977). The court has also asserted that the police cannot attempt to gain a confession or continue interrogation in the absence of counsel once the defendant has retained counsel (Massiah v. United States, 1964).
In Powell v. Alabama (1932) the court held that in capital cases defendants are entitled to the effective assistance of counsel. This was subsequently expanded to mandate that all defendants in felony cases are entitled to receive counsel at state expense (Gideon v. Wainwright, 1963) and in misdemeanor cases if the defendant is liable to be imprisoned (Scott v. Illinois, 1979). The right to counsel is case-specific; even if the charges arise out of the same incident the defendant must be clearly represented for each case (McNeil v. Wisconsin, 1991). An attorney is held to be ineffective if they have conflicting interests from their client (Holloway v. Arkansas, 1978), if the attorney does not present mitigating evidence (Bell v. Cone, 2002 ), or does not know the law. However, there is no right to counsel in preparing a writ of habeas corpus (Murray v. Giarratano, 1989). The claim of ineffective assistance of counsel is the most common claim by defendants and the claim most likely to fail.
Once defendants are charged they have a right to a speedy trial, which is a slippery definition. If a delay is unconstitutional the courts are to look to the length of the delay, the reason for the delay, whether the defendant objected to the delay, and if any prejudice arose from the delay. The most common method of trial is trial by jury. The right to a jury trial was first applied to the states in Duncan v. Louisiana (1968) and attaches for any offense where the maximum authorized imprisonment is six months or greater. There is no constitutional right to 12 jurors and there can be as few as six, but if six they must be unanimous in their decision (Burch v. Louisiana, 1979). The jury must represent a cross section of the country, which is designed to prevent racial, gender, or other bias. However, only the jury pool must represent a cross section of the country, not the jury that is impaneled to hear the defendant’s case (Taylor v. Louisiana, 1982). However, jurors may not be removed from the panel on the basis of race (Batson v. Kentucky, 1986) or gender (J.E.B. v. Alabama ex rel. T.B., 1994).
At trial the defendant has a right to confront witnesses testifying against them and to compel witnesses to testify in their favor. The defense has the ability to subpoena witnesses, and if that is interfered with the conviction can be overturned (Webb v. Texas, 1972). As part of the right to confront witnesses the defense has the right to cross-examine witnesses even if it is contrary to state statutes or court rules. For example, the court has said the defendant has a right to cross-examine a witness about their probation status against a state practice of protecting the anonymity of juvenile offenders (Davis v. Alaska, 1974) or questioning a victim about their relationship status (Olden v. Kentucky, 1988). The right to confront witnesses is one of the reasons that hearsay is usually not allowed in cases, although there are limited exceptions. In general any testimony that does not allow for cross-examination by defense counsel is usually held inadmissible, even when the witness is unavailable, because of state evidentiary rules (Crawford v. Washington, 2004).
The Eighth Amendment
The Eighth Amendment provides the final rights enumerated in the Bill of Rights related to criminal proceedings with its prohibition against excessive bail and cruel or unusual punishment. All states provide a right to bail for crimes that do not carry the possibility of capital punishment. The determination of bail varies from state to state, and some states set bail on a fixed schedule based on the crime committed. At the federal level bail is based on the flight risk of the defendant and the danger they might pose to the community. The prohibition against cruel and unusual punishment was not incorporated against the states until the case of Robinson v. California (1962). The definition of what constitutes cruel and unusual punishment has been the primary point of contention among the cases.
The court has held that a punishment must be both cruel and unusual to violate the Eighth Amendment (Hameline v. Michigan, (1991), which is to be determined by examining how other convicted persons are punished both within the jurisdiction and comparatively, as well as general proportionality of the crime. The current area of development is in the application of the death penalty, which the court has found to be cruel and unusual if imposed for the rape of an adult woman (Coker v. Georgia, 1977). The characteristics of the defendant have also been an issue, with the court prohibiting death sentences on minors under 16 (Roper v. Simmons, 2005) and persons with diminished mental capacity (Atkins v. Virginia, 2002).
The three major rights related to criminal trials to appear in the main text of the Constitution are the prohibitions against bills of attainder or ex post facto laws and the limitation on the suspension of the writ of habeas corpus provided for in Article 1, Section 9. The prohibition against bills of attainder prevents the government from passing laws specifically targeting an individual or group for prosecution without trial. Similarly, ex post facto laws prohibit the legislature from criminalizing acts after they have occurred. For example, the government could criminalize the sale of an item effective after the law was passed, but it could not criminalize actions that occurred before the law was passed. As discussed earlier the writ of habeas corpus is the primary method by which prisoners challenge their imprisonment.
The Supreme Court has held that the writ extended to all constitutional issues when the state provides no adequate corrective process (Frank v. Magnum, 1915). However, the court has limited the use of the writ to federal constitutional claims, thus baring actual claims of innocence under the writ. A central issue is the ability of a defendant to raise a claim using the writ if it was not asserted in state courts; the court has held that habeas relief is not available if the defendant has not exhausted their state remedies, if they waived the claim, or if there are independent grounds for keeping the defendant incarcerated. The Antiterrorism and Effective Death Penalty Act (AEDPA) limits federal relief under habeas writs but does not affect state relief. The act states that the defendant must raise all of their claims in the first writ or not at all. More important it places a one-year statute of limitation starting after judgment for the defendant to file the federal writ, which has acted to foreclose many writs.
The passage of AEDPA is part of a larger backlash against defendant’s rights that began in the early 1980s and has also manifested itself in the form of the victims’ rights movement. This movement was the result of several factors, including a push by civil rights supporters who believed that victims did not have adequate support in the criminal justice process, feminists who asserted that crimes against women were not being prosecuted vigorously, and the growing law-and-order view of society that developed in response to a belief that the criminal justice system had tipped too far in favor of protecting defendants. These were combined with the rising crime rate in the United States during the era as well as the general turn toward law and order in response to the rapid changes in U.S. society since World War II. The movement focused its efforts on ensuring that the criminal adjudication process provided support for victims in terms of counseling, preparation for trial, and receiving financial restitution for losses suffered during the commission of a crime.
More practical proposals were also pushed such as the returning of evidence and other property gathered for investigation to victims as quickly as possible. However, the primary achievement of the movement was the ability of victims to speak during the sentencing phase of the trial, and thus have their voices heard during the course of the proceedings. Although the victims’ rights movement has waned with the decline in crime rates and skyrocketing incarceration the changes that it implemented have become a fixed part of the criminal justice system.
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- Johnson, Phillip E. Constitutional Criminal Procedure: From Investigation to Trial. 4th ed. St. Paul, MN: Thompson/West, 2005.
- LaFave, Wayne R., Jerold H. Isra.el, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul, MN: Thompson/West, 2004.
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- Levy, Leonard W. Origin of the Bill of Rights. New Haven, CT: Yale Nota Bene, 2001.
- Waller, Irvin. Rights for Victims of Crime: Rebalancing Justice. Lanham, MD: Rowman & Littlefield, 2011.
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