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Rights of the Criminally Accused


In criminal prosecutions, the state can bring its authority, organizational power, and resources to bear against individuals. History, particularly precolonial and early colonial English history, demonstrated to the American Revolutionaries that governments could and did use their prosecution powers abusively—to imprison or destroy political enemies, tyrannize or cow populations, and preserve or advance unpopular regimes or policies. For such reasons, the Constitution and bill of rights included provisions restricting governmental use of prosecution powers and granting the criminally accused procedural protection.

Among these are specific denials of governmental authority to take certain kinds of actions, such as constitutional proscriptions on ex post facto laws, bills of attainder, and suspension of habeas corpus. The Fifth, Sixth, and Eighth Amendments accord the criminally accused specific criminal process rights. In addition, there are criminal process rights and protections mentioned neither in the Constitution nor the Bill of Rights, such as the right of proof of guilt beyond a reasonable doubt, which the Supreme Court has concluded are necessarily implied from the Constitution, history, and American practice. Finally, the fourth amendment right against unreasonable searches and seizures, a right accorded to all persons in the United States, has particular significance and impact in criminal proceedings.

Of principal importance are the criminal defendant's inferred and specifically listed constitutional trial rights. Although not expressly mentioned in the Constitution, first and foremost among these is the right of trial under an adversary system of trial. Adversary trial, as opposed to inquisitional trial, was the established form of trial at common law, and has always been the American practice—so much so that it has been deemed an essential feature of the Sixth Amendment right to a fair trial. In an inquisitional system of trial, judicial officials take an active role in advancing a prosecution and eliciting facts, and lawyers, or party representatives, play a rather passive role. In contrast, in the adversarial system, the parties to a prosecution, through their attorneys, control the presentation of evidence, and the judge plays the more passive role of umpire, attempting to insure both a fair contest between the parties and a fair fact determination. Party control of the presentation of evidence significantly enhances its ability to shape evidence to its advantage or to influence the fact finder, particularly in jury trials, where laypersons determine facts and decide questions of criminal responsibility.

Although criminal adversary trial is grounded in a rhetoric of a fair contest between equals as a way to accord both fairness to defendants and to discover truth, adversary trial actually has an asymmetric structure in which the prosecution has greater burdens and obligations than the defense. In particular, the prosecution has the burden of presenting a prima facie case against a defendant—the burden of proving guilt beyond a reasonable doubt—and an obligation to disclose to the defense evidence favorable to the defendant and material relevant to issues of guilt or punishment.

Although rarely considered to be a right of the accused, the government's burden of first presentation of evidence does confer potential strategic or tactical advantages on the defense in a criminal case. Knowing the specific nature of the prosecution's case, the defense can shape its own proofs for greatest benefit. Similarly, the prosecution's burden of proving guilt beyond a reasonable doubt, which the Supreme Court held in In re Winship (1970) to be a constitutional requirement, is, in effect, a defendant's right to require the government to prove guilt to a substantial certainty. This high burden inhibits the government from bringing or winning prosecutions based on weak evidence, and precludes the use of evidentiary presumptions that might favor it.

The prosecution also has a duty to disclose evidence. This requirement, which is derived from due process fairness considerations, insures there is no miscarriage of justice through failure to disclose evidence bearing on guilt. There is, however, no reciprocal, counterpart defense duty to disclose evidence favorable to the prosecution. With narrow exception, the Court has interpreted the requirements of adversary trial and the Fifth Amendment right against self-incrimination to prohibit the government from requiring the defense to provide evidence to the prosecution or otherwise to assist it in its case.

Adversary trial, as now understood, also assumes attorney representatives for each party, and the Court has interpreted the Sixth Amendment right to counsel to guarantee criminal defendants the right to be represented by an attorney at all "critical stages" of a criminal proceeding. This right applies in any case, felony or misdemeanor, in which an accused, if convicted, will suffer incarceration as a punishment. A "critical stage" is any occasion, once a criminal prosecution has been initiated, where the state takes action (usually in a proceeding where the defendant is present) that can be adverse to the defendant's interests in not being incarcerated or convicted. In addition, in the famous case of miranda v. arizona (1966), the Supreme Court held that criminal suspects in custody have a right to consult with counsel, if they wish, before speaking with police.

Criminal defendants have a right to representation by counsel of their choice if they can afford it or to appointed counsel if they cannot. The Sixth Amendment, however, also implies a right of self-representation, and the criminally accused may represent themselves if they knowingly and intelligently choose to do so.

The right to counsel when there is attorney representation also entails a right to "effective" assistance of counsel, that is, counsel generally competent to handle a criminal case, actually making decisions of a kind that competent criminal-trial attorneys would make, and not suffering from any conflict of interest that would impair or bias the representation. Finally, in the case of the indigent, the right to effective assistance of counsel combined with the more general right to a fair trial may also require some state financial assistance in investigating or presenting a case, for example, payment of expert-witness fees.

The Sixth Amendment also accords a criminally accused the right to an impartial jury. trial by jury is of particular importance because jurors are laypersons from the community, not governmental functionaries, and independent jury decision making in criminal cases can provide further protection against possible governmental overreaching. The Court has interpreted the jury-trial right to apply in prosecutions for all crimes except petty offenses, the latter defined as those punishable by no more than six months in prison and a $500 fine. This right includes the right to a petit jury selected from a larger group of persons, called the jury venire, which is cross-sectionally representative of the community.

Federal criminal juries must be composed of twelve persons and return unanimous verdicts. The Court has, however, interpreted the jury-trial requirement as applied to the states through fourteenth amendment due process to permit state criminal trial juries with as few as six members, but no fewer, that number being thought sufficiently large to provide the benefits of representativeness and of group deliberation. Similarly, the Court has concluded that state criminal trial juries, at least where there is a twelve-person jury, require only a substantial majority, rather than unanimity, to convict.

Criminal defendants have Sixth Amendment rights to confront and cross-examine witnesses. The right to confrontation is essentially a right to have the witnesses against the accused to appear in open court to make a face-to-face accusation, a requirement thought to enhance the reliability of witness statements. The associated right of cross-examination is in effect the right to test both the witness and his or her testimony in open court before the fact finder. With few exceptions, these rights entail that where a witness against the defendant is available, the government must produce that witness in court, rather than use previously recorded statements of the witness. In addition, the state may not impose rules restricting the defense's relevant cross-examination of a testifying witness.

The Sixth Amendment also gives criminal defendants the right to compulsory process to require the attendance at trial of witnesses in their behalf. This right is obviously important where a defendant has witnesses who could testify favorably, but are unwilling to appear in court. The right, however, is also read as a general right to present evidence in one's behalf and thus operates to prohibit states from restricting the defendant's presentation of relevant and generally reliable evidence. For example, when a state rule of hearsay evidence operates to exclude from a criminal trial trustworthy evidence that may be favorable to the defendant, the right to present evidence would override this rule.

Finally, the Sixth Amendment confers on criminal defendants rights to a speedy trial and a public trial. Defendants may desire speedy trials so they do not languish in jail or to quickly resolve the criminal accusation. Yet criminal defendants often seek to delay a criminal trial, either because they are not prepared or because they perceive some advantage in delay, such as the fading of witnesses' memories. For such reasons, the Court has held that delay in coming to trial does not of itself violate the speedy-trial right. Instead, the Court uses a multifactor balancing test to determine when the right was violated. This test considers the length of delay, the government's reasons for it, the defendant's assertion or waiver of his or her speedy-trial right, and the actual prejudice to the defendant. This test obviously gives little guidance, and it is apparent that even quite long delays of years may not trigger the right. In contrast, it is necessary to note that the government also has an interest in speedy trials and that both state and federal governments have statutes regulating trial delay. Because of such statutes, the speedy-trial right as a control over the timing of trials has receded far into the background.

The public-trial right protects defendants from unfair or abusive trials by ensuring that trials are open to public scrutiny. However, although defendants may demand that their trial be open to the public, they do not have a right to close their trial without a showing of real necessity. The Court has concluded that the first amendment free-speech and free-press guarantees entail public and press access to criminal trials so that the public can remain informed regarding the administration of criminal justice. Because criminal trials are presumptively open and only a weighty justification can justify closure, a defendant's public-trial right no longer retains much practical importance.

The Fifth Amendment provides three additional rights for the criminally accused: the right to indictment by grand jury, the right against self-incrimination, and the protection against double jeopardy. In theory, the grand jury acts as a check on governmental prosecution by committing the decision to indict a person of a crime to a group of ordinary citizens rather than vesting it in state officials. In practice, however, grand juries rarely operate independently of the prosecutors' offices providing them with information and guidance. Consequently, grand juries do not in fact constitute any significant check on criminal charging. Furthermore, the Supreme Court has not required the states to indict by grand jury. Although many states nonetheless use grand juries, state prosecutors generally are also free to charge persons by information, that is, a charging paper issuing solely from the prosecutor's office rather than from the grand jury.

The right against self-incrimination, which is the right to refuse to give evidence against oneself, however, does play an important role in criminal justice. The right protects a criminal defendant from governmental compulsion to speak, an abusive practice common in England in pre-colonial and early colonial history. In a criminal trial it amounts to a defendant's right to remain silent and not to take the stand to testify. Because comment by the prosecution on a defendant's refusal to testify—by claiming the refusal evidences guilt—might bring pressure on a defendant to testify, the Court has also held that prosecution comment on a defendant's silence violates the privilege.

More important, the right against self-incrimination now plays a critical role in analyzing and resolving issues regarding police interrogations of suspects, which results in confessions or inculpatory statements. Originally, the Court viewed Fifth and Fourteenth Amendment due process as requiring the state accord a suspect "fundamental fairness." The Court found police coercion of confessions or incriminating statements inhumane and unfair, forbade such practices, and barred the prosectution's use of such material in criminal trials whenever the defendant's statements were deemed involuntary. For various reasons, the voluntariness test proved unsatisfactory and unworkable. Police forces continued to use questionable techniques in seeking confessions and resorted to deceptive or progressively more subtle, yet nonetheless manipulative or abusive, interrogation practices. Finally, the Court took a major step to solve the general police-interrogation problem, and in Miranda v. Arizona held the right against self-incrimination applicable outside the context of a trial. Specifically, the Court held that when police conduct a custodial interrogation of a suspect they must respect the suspect's right to remain silent and cannot interrogate him or her if he or she does not knowingly, intelligently, and voluntarily agree to the interrogation. In Miranda the Court also concluded that the right of a criminal suspect to consult with counsel before speaking to police was essential to protect the suspect's right to remain silent if he or she chose to exercise it. Consequently, Miranda also held that when a suspect asks to speak with an attorney, all interrogation must cease until the suspect has consulted with an attorney or appropriately waived his or her right to do so. To insure that suspects understood their rights and could invoke them, Miranda further required police to give suspects they arrest or hold a set of " Miranda " warnings. These advise suspects of their right to silence, that their statements may be used against them, and that they have a right to an attorney appointed free of charge if necessary.

The Fifth Amendment further protects criminal defendants from double jeopardy, that is, from multiple prosecutions for the same offense by the same jurisdiction or for reprosecutions for the same offense after acquittal or conviction. Disallowing multiple or successive prosecutions, this clause prevents the government from rehearsing its proofs to perfect them and from persecuting or exhausting individuals through repeated efforts to convict. The double-jeopardy clause applies once the state places the accused in "jeopardy," which occurs in a jury trial when the jury is empaneled and sworn and in a trial to a judge when the first witness is sworn. Before these events, although the state may be advancing a criminal case against an individual, jeopardy is not thought to "have attached," and dismissals during this period do not bar the refiling of charges or a subsequent prosecution. The clause also does not bar reprosecutions where a convicted person has had his or her conviction overturned on grounds other than the insufficiency of the evidence to convict.

The double-jeopardy clause does not prohibit different "sovereigns" from prosecuting for the same offense. As many criminal offenses violate both state and federal law—for example, bank robbery—multiple prosecutions for the same offense are possible. As a matter of policy, however, federal and state prosecutors usually decline to prosecute an individual for the same offense when the other sovereign has prosecuted.

The Fourth Amendment protects all persons, not just the criminally accused, from unreasonable searches and seizures. As a practical matter, however, it has special application in criminal prosecutions because, when the government unlawfully searches or seizes from one whom it criminally charges, the remedy that the courts apply is the exclusion of the evidence unlawfully taken from that person's criminal trial.

In general, exclusion of evidence is the remedy courts apply to governmental violations of a defendant's Fourth, Fifth, or Sixth Amendment rights that result in evidence that the government seeks to use against the defendant at trial. This might occur when the government unlawfully searches and seizes, coerces a confession or statement from a person or obtains statements in violation of the miranda rules, or improperly obtains evidence through violation of a suspect's or accused's Sixth Amendment right to counsel. There has been considerable debate as to whether an accused in any of these situations has a constitutional right to have such evidence excluded or exclusion of evidence is simply a default remedy applied in the absence of any other effective sanction for the violation of constitutional rights. If there is no constitutional right to exclusion, the government could avoid the exclusion of evidence by providing other remedies for rights violations, at least where the remedies were thought to constitute sanctions as effective as exclusion. As a practical matter, however, neither the federal nor state governments have provided equally effective remedies, and courts and commentators continue to speak of an accused's "right" to have unlawfully obtained evidence excluded.

The Eighth Amendment proscribes excessive bail and cruel and unusual punishment. Under Supreme Court decisions applying the bail clause, an accused does not necessarily have the right to be released on bail. The Court has held that the excessive-bail provision prohibits bails set at a figure higher than an amount reasonably calculated to insure that the accused will make his or her necessary appearances in criminal proceedings and will submit to sentence if found guilty. However, the Court has also upheld preventive detention statutes under which persons shown to be dangerous to others if released may be denied bail.

The Eighth Amendment's cruel and unusual punishment clause applies both to capital and noncapital punishments. Strictly speaking, the clause protects the convicted, not the accused, but its importance to an accused's prospects of punishment warrants its inclusion here. The Court has held capital punishment cruel and unusual when it is applied arbitrarily, irrationally, or discriminatorily or when it is seriously disproportionate to the offense committed. With regard to noncapital punishments, the Court has held that the clause prohibits punishments that involve torture or the unjustifiable infliction of involuntary pain. It has also applied the clause to strike down confinements whose length or conditions are disproportionate to the crime or that involve serious deprivations of a prisoner's basic human needs (such as failure to provide medical care) and punishments involving loss of citizenship for status.

Gary Goodpaster


Damaska, Mirjan 1975 Presentation of Evidence and Fact-finding Precision. University of Pennsylvania Law Review 123:1038–1106.

——1983 The Adversary System. In Kadish, Sanford, ed. Encyclopedia of Crime and Justice. Vol. 1, pages 24–29. New York: Macmillan and Free Press.

La Fave, Wayne R. and Israel, Jerold H. 1984 Criminal Procedure. 4 Vols. St. Paul, Minn.: West Publishing Co.

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