Constitutional Protections in American Criminal Justice

Background and History

The United States Constitution was ratified in 1788, at which time it replaced the Articles of Confederation that had represented the same governing framework for the previous seven years. Since its ratification, the Constitution has been continually modified pursuant to the requirements set forth in Article Five. The first ten constitutional amendments are jointly referred to as the Bill of Rights, based on their subject matter and the areas of constitutional authority they address (Friedman, 2005).

The American criminal justice system evolved gradually over the last two centuries, with some of the most important changes occurring within the last fifty years. A few decades earlier, American law enforcement policies and criminal procedure were, in retrospect, inconsistent with many of the fundamental principles of the Constitution. The comprehensive application of due process protections at both the state and federal levels did not become the law of the land until the U.S. Supreme Court began applying them to the states through the Fourteenth Amendment in progressively broader respects throughout much of the twentieth century (Friedman, 2005).

In contemporary American criminal justice, some of the most important rights and protections afforded to persons accused of crimes are found in the Fourth, Fifth, Sixth, and Eighth Constitutional Amendments. Generally, the Fourth Amendment is the basis for modern search and seizure law; the Fifth Amendment protects the accused against coerced confessions, among other things; the Sixth Amendment guarantees the right to competent legal representation, to confront one's accuser, and to compel witnesses by subpoena; and the Eighth Amendment protects against cruel and unusual punishment (Dershowitz, 2002; Friedman, 2005; Schmalleger, 2008).

Much of the attention subsequently devoted to due process in criminal procedure reflected the historical experience of life under British rule prior to the War of Independence. In particular, the Fourth Amendment's search-and-seizure and arrest limitations, the Fifth Amendment's prohibition on compelled testimony, and the Eighth Amendment's reference to "cruel and unusual" punishments were all direct attempts to prevent the new government from exercising the same excesses that colonists had experienced as subjects of the British Crown (Schmalleger, 2008).

Fourth Amendment Protections

The Fourth Amendment embodies the right against constitutionally improper search and seizure, as well as protection from arbitrary arrest by state authorities. In modern American criminal justice, Fourth Amendment protections recognized by the Supreme Court evolved in particularly important respects during the 1960s, roughly coinciding with the Civil Rights Era (Dershowitz, 2002).

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court first applied Fourth Amendment protections against unwarranted searches and seizures to the states, after Ohio had argued that the Bill of Rights applies only to agencies and agents of the federal government. Mapp also extended the exclusionary rule to state criminal courts at a time when state law still permitted the introduction of incriminating evidence that had been improperly seized by authorities (Friedman, 2005).

Other Supreme Court decisions, such as Aguilar v. Texas, 378 U.S. 108 (1964), established crucial requirements for probable cause as the basis for search warrants. Specifically, that decision held that mere descriptions by police officers that "credible persons" had provided "reliable information" of criminal conduct were too vague to establish constitutionally sufficient probable cause (Zalman, 2008; Schmalleger, 2008). In contemporary American life, the rights emanating from the Fourth Amendment protect individuals from police searches of their homes, persons, and property without sufficient probable cause, by excluding from trial any evidence seized in violation of those requirements (Zalman, 2008).

Fifth Amendment Protections

The Fifth Amendment, among other things, prohibits the state from extracting criminal confessions from suspects or from compelling them to testify against themselves at trial (Zalman, 2008). During the first half of the twentieth century, many state and local police authorities routinely abused arrestees to extract confessions. These abuses were particularly rampant throughout much of the American South, especially in connection with the continued subjugation of Black Americans before the Civil Rights Era (Dershowitz, 2002).

In 1966, Miranda v. Arizona, 348 U.S. 346, was the first in a series of important Fifth Amendment cases decided by the Supreme Court that established specific rules governing permissible police conduct during interrogations. Specifically, Miranda prohibited the practice of interrogating criminal suspects unless police first advised them of their Fifth Amendment right against self-incrimination. More precisely, Miranda did not prohibit such questioning outright, but it rendered any evidence obtained through non-compliant interrogations inadmissible at trial under the exclusionary rule (Dershowitz, 2005; Friedman, 2005).

That area of constitutional law has undergone substantial evolution ever since, with subsequent cases recognizing valid exceptions to the general rule and also addressing impermissible police procedures designed to comply with the letter of the law while violating its spirit. In 2004, for example, the Supreme Court's decision in Missouri v. Seibert, 542 U.S. 600, outlawed the practice of so-called "two-tiered" interrogation, whereby police deliberately delayed arrest and the issuance of required Miranda warnings in order to interrogate suspects outside Miranda's protections first. This procedure often allowed police to extract confessions and other evidence from suspects, issue Miranda warnings afterward, and then use the previously elicited information to obtain additional confessions within Miranda's framework — effectively using inadmissible statements to generate ostensibly admissible ones (Hoover, 2005).