In this post, I will explain what rights are laid out in the criminal justice process under the constitution.
What criminal procedures are laid out by the constitution to protect indivdual liberty.
Rights Under The 4th Amendment
One essential tenet of criminal law is the 4th Amendment, which is a part of the Bill of Rights.
The 4th Amendment to the U.S. Constitution reads:
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 seized4th Amendment of U.S. Constitution
Whenever any evidence is seized by police, it must be done according to certain rules and procedures.
- Evidence may be seized by consent of the accused to allow police to search his/her home, car, or office.
- Evidence can be seized at the scene of a crime if it is in plain view such as a weapon or illegal drugs, or if seized pursuant to a search of the person who has been arrested.
- Evidence may be seized with a valid search warrant that has been issued based on probable cause that evidence of a particular crime will be found in a certain location.
What Are The Requirements To Obtain A Search Warrant?
To obtain a search warrant, a police officer must in good faith attest in an affidavit that he or she has either personally observed evidence at a certain location or has information from reputable and reliable sources that incriminating evidence is likely to be found there.
The affidavit is presented to a judge or magistrate who reviews and signs it.
Once issued, police may not search beyond the limits of the warrant such as searching your car if the warrant only allows a search of your office.
Any incriminating evidence found in plain view such as cocaine lying on the kitchen table if officers are permitted by warrant or consent to be in your home may be seized without a warrant.
Rights Under The 5th Amendment
There are several important sections to this amendment that are relevant to criminal procedure.
- Prohibition against self incrimination
- Double jeopardy
- Right to a grand jury
- Due process of law
The 5th Amendment to the U.S. Constitution states:
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 offence 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.5th Amendement to U.S. Constitution
Prohibition Against Self Incrimination
An essential provision in the 5th Amendment is the prohibition against self-incrimination where you cannot be compelled to be a witness against yourself.
You may refuse to testify in any proceeding such as a deposition in a civil case or “take the 5th” if you believe that your testimony could incriminate you in a certain crime.
If you were arrested, police or investigators cannot question you without first advising you of your right to not say anything to them.
Further, if you do not testify at your trial, the judge must instruct the jury that they must not make any inference of guilt based on your election to not take the witness stand.
What Are The Exceptions To The Bar Against Self-Incrimination?
- You can be compelled to have your fingerprints taken,
- A photograph of you,
- Your DNA obtained by a cheek swab,
- In some cases a sample of your blood without these actions considered incriminating for the purposes of the 5th Amendment.
There is a double jeopardy clause in the 5th Amendment that means that you cannot be tried twice for the same offense after a conviction or an acquittal and you may not punished multiple times for the same offense.
However, if convicted in state court you could be subject to prosecution in a federal court for crimes arising out of the same incident under the dual sovereignty doctrine.
For example, if you were convicted of homicide in state court, you could be prosecuted by the federal government for violating the victim’s civil rights under a federal statute.
Right to a Grand Jury
In a federal case, you can only be charged for a capital offense (homicide, treason, e.g.) or other crimes against the federal government by indictment issued by a grand jury.
The grand jury meets in secret and listens only to evidence presented by a prosecutor.
If sufficient evidence exists that a crime was committed then an indictment is issued.
Due Process of Law
Over the years, the court has incorporated the first 8 amendments of the U.S. Constitution into the states’ individual criminal proceedings through the 14th Amendment’s due process clause.
Substantive due process ensures that no one’s life, liberty, and property may be impaired or violated by the government and allows certain safeguards to be in place.
There is also procedural due process that ensures a fair trial and that all proper procedures in a criminal proceeding are followed including
- The right to an attorney,
- To have an attorney appointed for you if you are indigent or unable to afford one,
- To cross-examine witnesses against you,
- To have a fair and impartial jury, and
- To receive exculpatory evidence from the prosecution.
Rights Under The 6th Amendment
The 6th Amendment to the U.S. Constitution concerns your rights to a fair trial:
- Your right to a speedy and public trial
- Impartial Jury
- Confront and cross examine witnesses
- Effective assistance of counsel
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 defense6th Amendment to U.S. Constitution
Your right to a speedy and public trial
The 6th amendment fairly sets forth a defendant’s right to a speedy and public trial, though the speed that one is afforded is largely subjective and can be delayed in many cases without violating a defendant’s rights.
An unreasonable delay, though, can result in a dismissal of the charges.
Juvenile defendants are not entitled to a public trial given that the purpose of a juvenile proceeding is rehabilitative and not punitive and pursuant to the state’s interest in protecting a minor’s identity.
There is an exception if the juvenile is tried as an adult.
An impartial jury is one selected by the voir dire process whereby the court and counsel for the defense and prosecution are able to question potential jurors for bias and pre-existing judgments about the defendant’s guilt or innocence.
Defendants can sometimes waive their right to a public trial but may not compel a right to a private one.
Confront and Cross Examine Witnesses
Defendants are entitled to be advised of the charges brought against them, to confront or cross-examine the witnesses against them at trial, and to be afforded subpoenas to have witnesses testify at their trial.
An exception to this is where a witness who is unavailable or incapacitated but had his statement taken under oath can have that statement introduced.
Child witnesses may also be excused from testifying in open court to protect their well-being and may be examined in the judge’s chambers.
Effective Asistance of Counsel
The right to effective assistance of counsel is within this amendment and lays out the following:
- A defendant is entitled to legal counsel and to have the court appoint one if the defendant is unable to afford one.
- Counsel must present an effective defense and a conviction could be overturned in certain extreme cases where counsel was deemed grossly incompetent.
Rights Under the 8th Amendment
The 8th Amendment reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted8th Amedment to U.S. constitution
Bail in many instances can be set according to the offense that a defendant is being charged with as is done in certain misdemeanor offenses but with the added factors of the defendant’s criminal history and potential flight risk, especially with felony offenses.
Cruel And Unusual Punishment
It is a subjective judgment as to what constitutes cruel and unusual punishment with the court following the “evolving standards of decency” test.
The court will also consider whether the punishment fits the crime.
The court has not considered such punishments as electrocution or death by firing squad as excessive relying on its interpretation of the amendment as forbidding grossly excessive punishments.
State courts can differ as to what constitutes cruel and unusual punishment under its own constitution.