Civil Liberties & the

Rights of the AccusedCIVIL RIGHTS AND CIVIL LIBERTIES

• In the U.S. when one is accused of breaking the law he / she has rights for which the government cannot infringe upon when trying to prove that person’s guilt.

• These rights / civil liberties / protections from government are rooted in the Bill of Rights.

• In short, defendants have the right . . .

– of habeas corpus

– to be protected from ex-post facto

– to a jury trial

– to a speedy trial

– to not be forced into self-incrimination

– to counsel (an attorney)

– to be protected from unreasonable searches and seizures

– to be protected from cruel and unusual punishment

I got rights!Some have argued this is the most important. Without being able to go to a judge, a third party, law enforcement (the executive) power would be unchecked.

• The notion is that in order for the government to take your right to life, liberty, and property, it must follow due process as guaranteed in the 14th

amendment.

• The due process clause of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

• In other words, the government (including state

governments) must act fairly and use fair procedures. The Supreme Court has defined due process on a case by case basis.

Searches & Seizures• The government (i.e. police) is forbidden to search

and seize an individual and their property without probable cause (a reasonable belief that there is

guilt). In some cases a search warrant is issued by a court certifying that probable cause exists.

• In some cases the Supreme Court has approved of searches based on a reasonable chance of finding evidence of wrongdoing, i.e. there was no probably cause. For example, drug screenings.

• One’s civil liberty to be protected from illegal searches and seizures is guaranteed in the 4th

Amendment: “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 SC has interpreted the 4th Amendment in a manner that evidence obtained from an unreasonable search and seizure to be unconstitutionally and thus not allowed in court –exclusionary rule.

• Mapp v. Ohio (1961):The SC ruled that the one’s 4th Amendment right to be protected from unreasonable searches and seizures also applies to state governments.– The police were searching for a fugitive, but instead found

illegal obscene material in Mapp’s possession. Mapp argued that this material was seized illegally since the intent of the search was for a fugitive, thus it should have been excluded in court. The SC agreed.

Why did it take until 1961 for states to

be told they had to do this?

Remember the incorporation doctrine? Slowly, but surely the courts were forcing state governments to abide by the Bill of Rights due to the 14th

Amendment. Until the courts told them they had to, they weren’t going to do it on their own.

Self-incrimination• In the U.S. criminal justice system one is innocent

until proven guilty. This right is outlined in the 5th

Amendment: “No person shall be held to answer for a capital,

or otherwise infamous crime . . . nor shall be compelled in any criminal case to be a witness against himself . . . “

• A defendant does NOT have to prove their innocence, rather the burden of proof is on the government / prosecution.

• The Supreme Court has ruled that those arrested (i.e. accused of a crime) must be notified of this right (Miranda v. Arizona, 1966).

On a side note . . .

• The 5th Amendment like the 14th

Amendment addresses a variety of issues.

• “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.”

Double Jeopardy

Eminent Domain

Right to Counsel

• Those charged with crimes have the right to an attorney as outlined in the 6th Amendment: “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 defence.”

• The federal government had always ensured this right to defendants, states had not (Remember! States were slow to incorporate the Bill of Rights).

Note the spelling of the word. Many of these rights were traditional British rights too.

• Gideon v. Wainwright (1963): The SC found that anyone accused of a felony where imprisonment may be imposed, however poor they might be, has a right to a lawyer.

– In a subsequent case (Argersinger v. Hamilton, 1972) the SC said that a lawyer must be provided for the accused whenever imprisonment could be imposed.

Trials

• A defendant’s right to a fair and speedy trial is also outlined in the 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . . ”

Other parts of the 6th Amendment

• “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 defence.”

Habeas corpus

Right to confront

your accuser

You may force witnesses to

appear at court

Cruel & Unusual Punishment

• A defendant / convict’s right to be protected from cruel and unusual punishment in the 8th

Amendment: “Excessive bail shall not be required, nor excessive fined imposed, nor cruel and unusual punishments inflicted.”– The purpose of bail is to allow a person charged with a crime to

leave jail, as long as they put money upfront, so that they can better prepare for their upcoming trial.

• It is up to the Supreme Court to interpret what “cruel and unusual” means.

• Gregg v. Georgia (1976): The SC upheld the constitutionality of the death penalty / capital punishment.- Louisiana v. Resweber (1947), the Court ruled it was not

unconstitutional to subject an individual to a 2nd electrocution if they survived the first attempt.

– Furman v. Georgia (1972), the SC overturned GA’s death penalty at the time because it was carried out randomly.

– Estelle v. Gamble (1976), the Court said a state could not deny a prisoner needed medical care.

– Coker v. Georgia (1977), The SC found that the death penalty for a rape conviction of an adult woman violated the 8th amendment.

– Roper v. Simmons (2005), The SC found that the death penalty was unconstitutional for those who committed their crime before age 18.

• Similar to other civil liberties (i.e. freedom of speech),

for most of our nation’s history state governments felt they were exempt from having to give defendant’s these rights (they assumed it only

applied to the federal government), but with the passing of the 14th Amendment slowly but surely the Supreme Court decided that states must also incorporate the Bill of Rights, (i.e. incorporation

doctrine). The Supreme

Court says you have to follow

the Bill of Rights!