rights of the accused

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A primary purpose of government is to enforce law and order. The federal and state constitutions of the United States, for example, grant certain powers to government officials so they can maintain an orderly society and protect the lives, property, and rights of the people. Federal and state government officials have the duty of preventing some individuals from harming others through criminal acts such as theft, assault, rape, and murder. Nevertheless, criminal behavior has become a serious threat to many American communities where violence, theft, and illegal drug use are rampant. Most Americans, therefore, want law enforcement officials to be tough on criminals, to apprehend and punish them.

There are, however, constitutional limits on the power of government officials in order to prevent them from abusing the rights of individuals, including those accused of criminal behavior. From colonial times until the present, Americans have believed in an old English saying: “It is better for 99 guilty persons to go free than for one innocent person to be punished.” In the United States, a person accused of a crime is presumed innocent until proved guilty. The burden of proving the suspect guilty is upon the government prosecutors.

Americans want their federal and state governments to be both powerful and limited, so that freedom and order are balanced. On the one side, government officials should have enough power to keep order so that people are safe and secure. On the other side, the power of government officials to enforce law and order should be sufficiently limited so that they cannot oppress anyone.

Constitutional rights of the accused

The U.S. Constitution, especially the Bill of Rights (Amendments 1 to 10), protects individuals from wrong or unjust accusations and punishments by law enforcement officials.

Amendment 4 protects individuals against unreasonable and unwarranted searches and seizures of their property. It establishes conditions for the lawful issuing and use of search warrants by government officials in order to protect the right of individuals to security “in their persons, houses, papers and effects.” There must be a “probable cause” for issuing a warrant to authorize a search or arrest, and the place to be searched, the objects sought, and the person to be arrested must be precisely described.

Amendment 5 states certain legal and procedural rights of individuals. For example, the government may not act against an individual in the following ways:

• Hold an individual to answer for a serious crime unless the prosecution presents appropriate evidence to a grand jury that indicates the likely guilt of the individual.
• Try an individual more than once for the same offense.
• Force an individual to act as a witness against himself in a criminal case.
• Deprive an individual of life, liberty, or property without due process of law (fair and proper legal proceedings).

Amendment 6 guarantees people suspected or accused of a crime certain protections against the power of government. It provides these rights to individuals:

• A speedy public trial before an unbiased jury picked from the state and community in which the crime was committed.
• Information about what the individual has been accused of and why the accusation has been made.
• A meeting with witnesses offering testimony against the individual.
• Means of obtaining favorable witnesses, including the right to subpoena, or legally compel, witnesses to testify in court.
• Help from a lawyer.

Amendment 8 protects individuals from overly harsh punishments and excessive fines and bail (the amount of money required to secure a person's release from custody while awaiting trial).

Amendment 14 provides general protection for the rights of the accused against the powers of state governments. This amendment forbids state governments from making and enforcing laws that will deprive any individual of life, liberty, or property “without due process of law"; it also says that a state government may not deny to any person under its authority “the equal protection of the laws.”

The U.S. Constitution includes other protections of individual rights that are not in the Bill of Rights or subsequent amendments. For example, Article 1, Section 9, prohibits government from suspending the privilege of the writ of habeas corpus. A writ of habeas corpus requires officials to bring a person whom they have arrested and held in custody before a judge in a court of law. The officials must convince the judge that there are lawful reasons for holding the person. If the judge finds their reasons unlawful, then the court frees the suspect. Thus, the writ of habeas corpus protects individuals from government officials who might want to jail them arbitrarily—because they belong to unpopular groups or express criticisms of the government, for instance.

Article 1, Section 9, also prohibits enactment by the federal government of bills of attainder and ex post facto laws. A bill of attainder is a law that punishes an individual solely by means of legislation, without a trial or fair hearing in a court of law. An ex post facto (literally, “after the fact”) law makes an action a crime after it was committed.

Article 1, Section 10, prohibits state governments from enacting bills of attainder and ex post facto laws.

Article 3, Section 2, provides individuals accused of a crime the right to trial by jury.

Article 3, Section 3, protects individuals against arbitrary accusations of treason— an attempt to overthrow the government or to give aid and support to enemies of the United States, such as countries waging war against it. This article also establishes rigorous standards for convicting a person of treason.

Sources of rights of the accused

-American ideas about the rights of the accused—criminal defendants—can be traced to the great English documents of liberty, such as the Magna Carta (1215), the Petition of Right (1628), and the English Bill of Rights (1689). These documents embodied the principles of limited government and the rule of law, which all were bound to obey, even the king. For example, Section 39 of the Magna Carta said that no “freeman” could be put in prison except “by the lawful judgment of peers or the law of the land.” This was the beginning of due process of law and rights for individuals accused of crimes. These ideas were developed in England and brought to the North American colonies in the 1600s.

American colonists expanded their English legal heritage to provide new and higher levels of protection for the rights of the accused. The Massachusetts Body of Liberties (1641), for example, established many provisions that appeared later in the federal Bill of Rights, such as the rights to trial by jury, to challenge jurors, to have assistance of counsel, to know the charges of criminal behavior, to reasonable bail, and to protection against cruel or unusual punishment.

By the time of the American Revolution, legal protections for those accused of crimes were a generally accepted part of government. The Declaration of Independence (1776) accused the British king of, among other charges, violating the due process rights of Americans, such as “depriving us, in many cases, of the Benefits of Trial by Jury.”

The new constitutions of the first 13 states of the United States, written between 1776 and 1783, included ample provisions for the rights of the accused. These state constitutions reflected an American consensus about the general importance of due process of law in criminal proceedings and about specific protections for the rights of accused persons. The rights of the accused expressed in the U.S. Constitution (1787) and Bill of Rights (1791) were drawn from the provisions in the original 13 state constitutions.

Rights of the accused under constitutional law

Throughout most of U.S. history, the federal Bill of Rights had little impact on individuals accused of crimes. Most criminal cases in the American federal system were (and will be) within the jurisdiction of state governments. And the U.S. Supreme Court ruled in Barron v. Baltimore (1833) that the federal Bill of Rights restrained only the federal government. As a result, the rights of the accused guaranteed by Amendments 4, 5, 6, and 8 of the U.S. Constitution were not applicable to law enforcement activities of state governments. Most defendants, therefore, could look only to their state constitutions and bills of rights for legal protection against police power.

The 14th Amendment, ratified in 1868, appeared to impose certain legal restrictions on the states in criminal proceedings. This amendment stated, “No state shall… deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

In Hurtado v. California (1884), the U.S. Supreme Court faced the question of whether the due process clause of the 14th Amendment required a state government to provide the 5th amendment guarantee of a grand jury indictment in criminal proceedings. The Court ruled that the 14th Amendment did not incorporate, or include, any part of the 5th Amendment and thereby make it binding on state governments. Hurtado, like Barron v. Baltimore, implied that the federal Bill of Rights could be used only to limit the federal government.

Justice John Marshall Harlan dissented from the Court's opinion in Hurtado v. California. He argued that the intent of the 14th Amendment was “to impose upon the States the same restrictions, in respect of proceedings involving life, liberty, and property, which had been imposed upon the general government.” Harlan concluded that the rights of the accused in the federal Bill of Rights could be applied to the states through the 14th Amendment's due process clause.

Justice Harlan's dissent in Hurtado prevailed in the long run. In Powell v. Alabama (1932) the U.S. Supreme Court ruled that the due process clause of the 14th Amendment required assistance of a lawyer for defendants charged in a state court with a crime punishable by death. In Cole v. Arkansas (1947) the Court used the 14th Amendment's due process clause to apply to a state the 6th Amendment's requirement of notice of accusation to a defendant. And in In re Oliver (1948), the 6th Amendment requirement of a public trial was imposed upon the states through the 14th Amendment. Further, in Wolf v. Colorado (1949), the Court incorporated the 4th Amendment's protections against unreasonable searches and seizures into the 14th Amendment.

The Supreme Court's case-by-case application of the rights of the accused listed in the federal Bill of Rights to the states moved ahead dramatically during the 1960s. This rapid change, often called a “due process revolution,” took place under the leadership of Chief Justice Earl Warren. The following cases applied virtually all of the 4th, 5th, 6th, and 8th Amendment rights of the accused to the states through the due process clause of the 14th Amendment:

• Mapp v. Ohio (1961): Evidence obtained in violation of 4th Amendment rights must be excluded from the state's prosecution of criminal defendants.
• Robinson v. California (1962): State governments cannot use cruel and unusual punishments in violation of the 8th Amendment.
• Gideon v. Wainwright (1963): The 6th Amendment right to counsel must be provided to all defendants.
• Malloy v. Hogan (1964): Defendants in state courts have the 5th Amendment right of protection against self-incrimination.
• Pointer v. Texas (1965): States must observe the 6th Amendment right of defendants to confront witnesses against them.
• Parker v. Gladden (1966): Defendants in state courts have the 6th Amendment right to an impartial jury.
• Miranda v. Arizona (1966): Police are required to advise suspects of their 5th Amendment right of protection against self-incrimination and 6th Amendment right to an attorney.
• Klopfer v. North Carolina (1967): Defendants in state courts have the 6th Amendment right to a speedy trial.
• Washington v. Texas (1967): Defendants in state courts have the 6th Amendment right to subpoena witnesses to testify in their favor.
• Duncan v. Louisiana (1968): States must guarantee the defendant's 6th Amendment right to a jury trial in criminal cases.
• Benton v. Maryland (1969): State law enforcers cannot subject a person to double jeopardy; that is, they cannot deprive individuals of their 5th Amendment right not to be tried twice for the same crime.

Controversies about rights of the accused

The Warren Court's due process revolution nationalized the rights of the accused in the federal Bill of Rights; that is, people accused of crimes anywhere in the United States could expect the same legal protections.

Many Americans hailed the due process revolution. Others, however, criticized it for caring too much for the rights of accused criminals and too little for the vic-tims of crime and the law-abiding majority of the people. The critics claimed that such decisions as Mapp, Malloy, and Miranda restricted police too much and made it too easy for criminals to evade punishment.

During his 1968 Presidential campaign, Richard Nixon sided with the critics when he said, “Let us always respect, as I do, our courts and those who serve on them, but let us also recognize that some of our courts have gone too far in weakening the peace forces as against the criminal forces in this country.” After winning the Presidency, Nixon appointed a new chief justice, Warren Burger, who agreed with him about issues of law, order, and the rights of the accused. From 1970 to 1971 President Nixon appointed three more justices: Harry Blackmun, Lewis Powell, and William Rehnquist. Later, Presidents Ronald Reagan and George Bush also expressed strong concern for the rights of crime victims and criticized the overemphasis on the rights of criminal suspects.

Despite high-level objections to some aspects of the due process revolution of the Warren Court, none of the Court's rulings on the rights of the accused has been overruled. Only minor modifications have been made in the Mapp and Miranda decisions about certain 4th and 5th Amendment rights. In New York v. Quarles (1984), the Court decided that police officers could, in order to protect themselves against harm, question a suspect about possession of weapons before advising the suspect of his Miranda rights to remain silent and obtain counsel. In United States v. Leon (1984) the Court adopted a “good faith exception” to the exclusionary rule established by the Mapp decision. This means that evidence obtained illegally may be used to prosecute a defendant if the police who obtained it thought they were acting legally at the time. In Dickerson v. United States (2000), however, the Court acted to reinforce the rights of a suspect by deciding that Congress cannot enact legislation to overrule the long-standing Miranda warnings requirement.

In a free society, there will always be arguments about the proper balance between liberty and order, between the rights of criminal suspects and the public's need for safety and security against crime. The exact meaning and practical applications of due process of law will continue to be debated in public forums and courts of law. Such constructive controversies are signs of a healthy constitutional democracy.

See also Benton v. Maryland; Bill of Rights; Counsel, right to; Double jeopardy; Due process of law; Duncan v. Louisiana; Exclusionary rule; Gideon v. Wainwright; Grand jury; Habeas corpus, writ of; Incorporation doctrine; Juvenile justice; Mapp v. Ohio; Miranda v. Arizona; Powell v. Alabama; Searches and seizures; Trial by jury; United States v. Leon; Wolf v. Colorado

Sources

• David J. Bodenhamer, Fair Trial: Rights of the Accused in American History (New York: Oxford, 1992).
• David J. Bod-enhamer, “Trial Rights of the Accused”,” in By and for the People: Constitutional Rights in American History, edited by Kermit L. Hall (Arlington Heights, Ill.: Harlan Davidson, 1991).
• David J. Bodenhamer and James W. Ely, Jr., The Bill of Rights in Modern America after Two Hundred Years (Bloomington: Indiana University Press, 1993).
• Fred Graham, The Due Process Revolution: The Warren Court's Impact on Criminal Law (New York: Hayden, 1970).
• Samuel Walker, Popular Justice: A History of American Criminal Law (New York: Oxford University Press, 1980).
• Samuel Walker, “Rights Before Trial”,” in By and for the People: Constitutional Rights in American History, edited by Kermit L. Hall (Arlington Heights, Ill.: Harlan Davidson, 1991)