Evolution of the Rights of the Accused

Thesis: This paper will described the evolution of the rights of the accused and show how the concept changed from its initial inception in early America to its current conception in the 21st century.
Introduction
The rights of the accused in the modern West stem from the rights of man, propagated by Thomas Paine in 1791 shortly after the War for American Independence was won. It was Paine’s assertion that rights stemmed from nature, rather than from any one human authority. This concept was born out of the Enlightenment philosophy of the day, which was itself a radical response to the Old World concepts of human order, society, hierarchy, and human nature. Whereas the Old World accepted the idea that all rights were given according to the will of the authority of the realm, the New World was much more approving of Paine’s dictum that rights came from God or nature and that no man had the right to take them away. This served as the basis of the American Declaration of Independence in 1776, and as the basis of Thomas Jefferson’s assertion that “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate” (Jefferson, 1774). This concept fed into the way in which the Founding Fathers formulated the rights of American citizens in the following years, which in turn informed their position on the rights of the accused. Since that time the rights of the accused have evolved along with the changes in social and cultural inputs in the West. This paper will described the evolution of the rights of the accused and show how the concept changed from its initial inception in early America to its current conception in the 21st century.
Early America
Few of the rights that exist today were held by all in early American history. Women could not vote. Slavery was not yet abolished. Property owners were entitled to more rights than non-property owners. Early America was a place in which there were clear class, race, and gender barriers: it was a place in which an Old World hierarchy was still somewhat being propped up under the guise of New World doctrines. This would all change gradually as the modern era began to define itself more assertively, through social, economic and political advances. The Industrial Revolution would usher in these changes more abruptly throughout the 19th century, and in the 20th century, large changes would be seen.
But in early America, a simple approach to law could be seen. Based primarily on British law, the rights of the accused protected the person accused of a crime from an unfair or hostile trial. In Britain, law was not viewed with much love. Writers from Shakespeare (in Hamlet) to Dickens (in most of his works) expressed their scorn for it—whether highlighting its slowness, its injustice, or its practitioners’ lack of ethics. For that reason, the American Revolutionaries resolved to address the issues that their British brethren had failed to rectify. Thus, the Framers of the U.S. Constitution sought to limit the abuse that the state could inflict upon a person accused of a crime. They wanted to guarantee that everyone would have a fair trial, the trial itself dictated by facts and evidence rather than by personal invective. The Bill of Rights was written to this very specific end and codified in the Constitution along with a number of other future Amendments designed to protect the rights of the accused in various other ways that were needed as well.
Black (1960) wrote that the Bill of Rights was the set of rights that first iterated the rights of the accused in America in a way that was clear and exact and upheld by the whole of the new nation: the rights it described included “those which safeguard the right of habeas corpus, forbid bills off attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried” (p. 865). Habeas corpus was viewed as one of the most important rights of the accused. Defined as an order that requires the accused to be brought before a judge or before a court, unless lawful grounds are shown for their detention, habeas corpus was especially critical to the formation of the rights of the accused in early America because it ensured that no one could be held, detained or imprisoned indefinitely without trial or without coming before a judge. Yet, this very important right was not strictly observed at all times—especially in times of war. Indeed, the Great Emancipator himself Abraham Lincoln suspended habeas corpus during the Civil War (Halbert, 1958).
That which was “hailed as the highest safeguard of liberty” for those accused (Oaks 1965) was denied by Lincoln during the War in an act that resembled the kind of tyranny of office feared by Anti-Federalists a century earlier: yet as Oaks (1965) notes, the context in which Lincoln suspended the writ was much different from the context in which it was originally formulated: “Early forms of the writ were used to transfer custody of persons held on civil process from one court to another to aid the administration of justice” (Oaks, 1965, p. 243). Lincoln’s suspension of this right of the accused was dictated by his perception of the War and the needs of the Union. The proper and normal administration of justice was, in other words, put on hold as Lincoln dealt firstly with putting down what the North believed to be the rebellion of the South. Still, in defense of the Secessionists, they were not afforded the basic rights of the accused that the Constitution appeared to give them. Even Jefferson Davis believed that the southern states, accused of treason, had the right to a fair trial—a right to be heard—a right to put their case before an impartial court. He even expected and hoped to be arrested on his final day in the U.S. Congress specifically so that he could make use of these rights to put forward the arguments of the South and thus avoid a war. No one, however, was bold enough to test that idea. The rights of the accused were set aside in favor of war (Foote, 1958). Lincoln pushed them aside even more when he suspended habeas corpus. The Great Emancipator would go on to be remembered for ending slavery, but he helped resurrect an old form of tyranny that the Founding Fathers and Framers of the Constitution had hoped to avoid with their Bill of Rights and subsequent Amendments.
Following the Civil War, habeas corpus was restored and the rights of the accused were once more respected according to the Constitution. However, society itself was now changing as a result of new ideas circulating among the public. The question of the rights of blacks, former slaves, was one that had to be answered. Were they to be protected by the same Constitution and afforded the same rights as free men, as property owning white men? And what about women? What were their rights within this limited context?
The Fourth Amendment
The Fourth Amendment was meant to protect citizens from undue searches and seizures and may be included into a discussion on the rights of the accused, because those who are detained, searched, and have their property seized are essentially being accused of some criminal act and are thus treated by the state. However, there is a protocol that must be in place in order for police or the state to act in this manner. They cannot simply stop whomever they wish or conduct searches in a meaningless manner, as Constitutional law forbids it.
With the rise of the Digital Age, this question of searching and seizing the personal property of people has been questioned in a number of court cases, especially those involving wiretapping, confiscating hard drives, or surveillance via FISA courts. Though these activities are conducted in order to obtain evidence so that the target might then be aptly accused of a crime, the Fourth Amendment is clear about persons being accused, first, and then detained or searched—not the other way around. Over time, this concept has been inverted and the necessity to prevent crime for going undetected or from letting criminals escape without being caught has allowed this inversion to take place.
For example, the Electronic Privacy Control Act (ECPA) was passed in 1986 and consisted of a bundling of the Wiretap Act, the Stored Communications Act and the Pen Register Act. A quarter century later, in the wake of 9-11, this act was updated with the Patriot Act and then in 2008 by the FISA Amendments Act, which allowed the state to assert even more invasion into the lives of target people. All of this appears to go against the spirit of the Fourth Amendment, which protects: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fifth Amendment
The Fifth Amendment directly addresses and identifies the rights of the accused by stating that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This important Amendment was added to the Constitution in order to prevent states from forcing an accused to self-incriminate and to prevent states from continuously charging a person with the same crime over and over again until the state gets a verdict it wants—i.e., the accused is protected from double jeopardy.
This protection evolved in the 20th century with the case of Blockburger v. United States, in which the accused was charged with multiple crimes. The Supreme Court ruled that a state may try the accused for two crimes if there is an element of each of the crimes that is unique and not contained in the other crime. What is important to remember about this case is that instead of a state targeting a person for a crime repeatedly, it now has the option of breaking up the person’s crime into unique crimes that are hair-splittingly similar (relying on they do on minute differences and distinctions) in order to better their chances of obtaining a conviction. One also sees in this ruling the obvious tendency in American law to subvert the rights of the accused through legalistic practices that put immense pressure on the defendant and undermine his or her chances of obtaining a fair and impartial trial. Surely, a jury may think, the more crimes an individual is charged with by the state, the more likely it is the accused is guilty of something. But when the crimes are simply rehashed statements of basically the same crime, uniquely categorized and defined so as to make it appear that the accused has committed far more wrong-doing than a single crime might convey, the protection initially afforded by the Fifth Amendment is essentially gone. Blockburger v. United States changed the way the Courts looked at prosecuting, and the rights of the accused evolved—or rather devolved—into an era where tyranny and oppression were a common motif.
The Sixth Amendment
The Sixth Amendment also directly addressed the rights of the accused by ensuring that “in all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.” This important right of the accused was designed so that no defendant would be going to court unassisted, blind about the law, and unsupported by a qualified lawyer. The Assistance of Counsel clause, as it is called, provides the accused with a variety of rights in and of themselves:
· The right to choose one’s counsel
· The right to have counsel appointed
· The right to have counsel that is free of conflict
· The right to have counsel that is effective
· The right to choose to represent oneself as one’s own counsel
These rights have evolved over the years and have grown organically out of Court interpretations of the Sixth Amendment as a result of various court cases. For example, Brewer v. Williams (1977) led to the definition that “at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.”  The right of the accused to the appointment of counsel came about in the case of Powell v. Alabama (1932), in which the Supreme Court held that “in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.”
For the accused who suffered from penury or who were too poor to afford counsel, the Supreme Court also had a ruling in a case that addressed their needs. This one came in 1938 during the case of Johnson v. Zerbst, in which the Supreme Court stated that in any federal trial, the accused must be appointed counsel if the accused cannot afford counsel on his or her own. In other words, the state would provide the counsel and counsel would work for the state. If state counsel is also conducting the prosecution, one could argue that there might be a conflict of interest here, so this could be viewed as another evolution of the rights of the accused that is not necessarily beneficial to the accused—though it may appear to be so from a distance: the poor, impoverished defendant cannot afford a lawyer and is kindly appointed one by the state. What does the state lawyer do? Does he or she urge the defendant to accept a plea deal, plead guilty or maintain innocence? There is no easy answer to any of these questions as they all depend upon the case and the character of the counsel—but one may see how the overlap of prosecutorial and defense duties by the state in these cases may be cause for, somewhere underneath, a conflict of interest.
It is perhaps for this reason that the federal government did not extend this right to the states via the Fourteenth Amendment in the case of Betts v. Brady (1942). While the Supreme Court held that in all federal trials a poor defendant who could not afford to hire a lawyer would be appointed one by the state, the Court denied to pass this right on to state trials, seeing this as an overreach of federal authority. Yet as Brennan (1986) notes, with the revival of State Constitutions as “guardians of individual rights,” the courts have now seen that “counsel must now be provided in every courtroom of every state of this land to secure the rights of those accused” (p. 539). In other words, the evolution of the rights of the accused followed the example of federal government and states were soon guaranteeing the appointment of counsel to those who could not afford it—and whether this has been or has not been to the detriment of the accused is a matter that might be argued.
The Sixth Amendment also addresses other issues related to the rights of the accused: namely the right to a speedy trial and a fair and impartial jury: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” The appointment of 12 persons to a jury was based on the current practices at the time in England and was therefore considered an historical custom that the American courts would follow. It was also asserted that the jurors must be unanimous in their verdict in federal cases. This custom was examined by the Supreme Court via the 14th Amendment later and while the appointment of 12 jurors was retained, the need for unanimous verdict in all manner of cases was not retained.
When addressing the issue of juries, it also became important for counsel to determine the paneling of the juries so that the accused might truly obtain a fair and impartial trial. Prior to the obtainment of rights for women in the 20th century, juries consisted of men. Yet that all changed when women were afforded equality in the 20th century. It then became important to consider whether women should be obliged to sit on juries.
Since a jury is supposed to be reflective of a cross-section of one’s community and not representative of a single demographic—i.e., one that consists solely of old, white men, or young black women, etc.—the accused had the right to ensure that a jury was truly representative of the community in order to better ensure that a fair trial was going to be held. The issue of women jurors came to a head in 1975 with the Supreme Court hearing of Taylor v. Louisiana, which found that exemptions could not be made for female jurors if they were not also made for men. Thus, women were to be expected to panel juries right alongside men from that point on.
Conclusion
In conclusion, the evolution of the rights of the accused has developed from the early days of American history right up to now, when courts are still arguing and challenging concepts that are difficult to agree upon. In some cases, the Supreme Court gets involved in order to iron out the wrinkles and provide a ruling at the highest level. These rulings typically alter the course of history and change the way the rights of the accused are viewed. In short, perspective is everything, and the Supreme Court over the centuries has helped to change how the accused are viewed, how they are supported and how they are (quite possibly) hampered by interpretations of the Constitution that have been handed down from prior court rulings. The rights of the accused have sometimes been set aside, have sometimes been ignored, and have sometimes been undermined by the highest authorities. Yet the Framers of the Constitution did their best to protect the rights of the accused. Today, those rights must continue to be protected.

References
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Brennan Jr, W. J. (1986). The Bill of Rights and the States: The Revival of State
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