Advanced topics in criminal justice

Defendant and the Bill of Rights

When the Constitution of the United States was ratified by a majority of the states in 1789, it lacked what has come to be called the Bill of Rights, a very important document made up of amendments to the Constitution itself. For example, in the original Constitution, there existed no protection against the establishment of a national religion and did not guarantee that American citizens could speak freely, belong to any group they wished or publish magazines and books without the fear of being censored or banned by the federal government. But most importantly, the Constitution did not promise nor provide any protections for a citizen accused of a crime, nor did it specify that such a person would receive a fair and swift trial and if convicted receive just and humane punishment.

The Amendments:

The first ten amendments in the Bill of Rights focus on numerous topics, but for our purposes, the fourth, fifth, sixth, and eighth amendments are the most important. The Fourth Amendment concerns "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" which creates a balance between the right to privacy and the government's need to obtain evidence of a crime. The Fifth Amendment states that "no person shall be held... For a capital... crime unless on a presentment or indictment of a Grand Jury... Nor shall any person be subject for the same offence... Nor compelled to... be a witness against himself... Nor shall private property be taken...without just compensation," meaning that a person convicted of murder can only be charged with sufficient evidence and cannot face "double jeopardy" (tried twice for the same crime) and can refuse to answer any questions which might incriminate himself.

The Sixth Amendment declares that the accused "shall enjoy the right to a speedy and public trial by an impartial jury" and be "confronted by the witnesses against him" and have "compulsory process for obtaining witnesses in his favor and to have assistance of Counsel for his defense," all of which provides safeguards for persons accused of a crime and promises the right to a trial and guarantees that a person will be told of the charges against him while accompanied by a lawyer. Finally, the Eighth Amendment states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted," a reference to bail as a deposit with the court to guarantee that the accused shows up for trial, but if the accused fails to show, the bail is forfeited and the accused can still be brought to trial when located by the court. Also, the elimination of "cruel and unusual punishment" refers to torture, such as flogging, branding with a hot iron, or forcing the accused to be chained or placed in a stock ("The Bill of Rights," Internet).

Discussion on the Amendments:

The Fourth Amendment serves as a protection device against unreasonable searches and seizures and in most instances, the police (federal, state and local) must possess a valid warrant issued by the court to conduct a search or make an arrest. This warrant must be issued by a judge or magistrate who possesses probable cause to believe that the law has been violated. Also, the search warrant must specify exactly what evidence the police are seeking. At times, a search warrant is not required, for if an officer observes a crime being committed, he/she has the right to arrest or apprehend the culprits. However, if a search warrant specifies what evidence is being sought during a search and other evidence is found concerning another crime, such evidence cannot be used in court.

The Sixth Amendment guarantees that an accused person will be treated fairly and justly by the officers that make the arrest and by the courts that hear the accuser's case. As to jury trials, three rules must be followed -- first, the jury must be made up of twelve members; second, the trial must be supervised by a judge with the authority to instruct the jurors, and third, the verdict of the jurors must be unanimous. However, prior to 1968, states were not required to provide the accused a trial by jury in criminal prosecutions. This was ruled as unconstitutional by the Supreme Court, for it violated the Sixth and Fourteenth Amendments (Brant, 1965, p. 167).

The Sixth Amendment also guarantees the accused the assistance of a lawyer regardless of the fact that the accused cannot afford to pay for a lawyer. In 1963, Justice Hugo L. Black stated that the right-to-counsel provision in this amendment "is fundamental and essential to a fair trail in both federal and state courts." In addition, this amendment provides the right of the accused not to say anything which might incriminate himself. This is where the familiar phrase of "taking the Fifth" originated. Also, this amendment has much to do with the Miranda rights, created in 1966, which states that the accused has the right to remain silent and that anything said by the accused will be used against him/her in a court of law (Brant, 1965, p. 169).