X. RIGHTS OF CRIMINAL DEFENDANTS

The Bill of Rights provides significant protections for those accused of and prosecuted for crimes by either the federal or state governments. Most importantly, the due process clause not only requires fundamental fairness in all aspects of a criminal trial, but also makes most of the other, more explicit protections of the Bill of Rights applicable in state-court trials.

A. Rights at Trial

Most of the safeguards designed to guarantee a fair trial are found in the Fifth and Sixth Amendments. All accused persons have the right to be informed of the charges against them. Thereafter, they are entitled to a “speedy and public trial, before an impartial jury.” At that trial they have the right to confront and cross examine all witnesses against them and to have the state require the attendance of witnesses they would like to have testify. The accused has the right to testify in his own behalf, but may not be compelled to do so if he does not wish to.

Possibly the most important right of all is the right to “have the Assistance of Counsel” (an attorney), since only a lawyer can adequately protect all of the defendant’s other rights. In the 1963 case of Gideon v. Wainright, the Supreme Court held that the right to an attorney was so important that the state was required to provide one when the defendant could not afford one himself.

B. Rights Before Trial

Some of the most important constitutional protections apply even before trial. For example, although the accused does not have the right to an attorney immediately upon arrest by the police, he has that right after he is formally charged with a crime (by indictment by a grand jury or arraignment before a judge). This can make a big difference. For example, if the accused is subjected to a lineup before being arraigned, he is not entitled to have an attorney present, whereas after arraignment he is. If the accused has been arrested but not yet arraigned, the police may plant an informant in his jail cell to try to get him to make damaging statements. They may not do so, however, after he has a right to an attorney.

C. Right Against Self-Incrimination

Another important right of the accused that applies both during and before the trial is the right not to “be compelled in any criminal case to be a witness against himself.” Under the American accusatorial system, unlike the inquisitorial system of many other countries, the defendant may not be forced to testify if he does not want to. This relieves the defendant of the “cruel trilemma” of choosing either to 1) admit the crime and almost certainly be convicted, 2) deny the crime and face possible perjury charges for lying under oath, or 3) refuse to testify and be held in contempt of court.

Not only is the prosecution prohibited from requiring the defendant to testify, they also may not ask the jury to hold the defendant’s silence against him. For example, a prosecutor may not say to the jury: “You would expect an innocent man accused of a serious crime to appear before you to tell you that he is not guilty and to explain what actually happened, but the defendant has chosen not to do so. This shows that he is guilty.”

D. The Miranda Rule

In the well-known and controversial case of Miranda v. Arizona, the Supreme Court, in 1966, held that the right not to be a witness against ones self applies even before trial. The accused has a right to remain silent anytime he is questioned by police. Any statement elicited from the accused while in police custody will not be admitted at his trial, unless he is told of that right and has voluntarily decided to speak in spite of that fact.

Before the Miranda case, if the defendant confessed to the police, the prosecutor could normally have the confession admitted into evidence. The only way that a defendant could challenge a confession was to show that it was not voluntarily given. For example, if the defendant could show that the police beat it out of him or threatened to harm him or his family if he did not confess, then the confession was not admitted. Such confessions were considered too unreliable to satisfy the fundamental fairness required by the due process clause. However, such a showing was very difficult for the defendant to make, since it was often only his word against that of the police.

In Miranda, the Court decided that any statement made in response to “custodial interrogation” was inherently compulsory. Such statements would be presumed to be involuntary and inadmissible unless the prosecution could show that the defendant was informed of and had waived has Fifth Amendment rights.

For Miranda to apply, the accused must be “in custody.” This means that his freedom must be restrained in some significant way. For example, if police stop a motorist and question him while he is sitting in his car, he is not in custody. If, however, they order him out of his car and subject him to lengthy questioning inside the police cruiser, then he is considered to be in custody. The statement must also be given in response to police questioning. If the accused merely blurts out some information without being asked, this is not covered.

As anyone who has watched American television knows, the four requirements of the Miranda warnings are:

1. You have the right to remain silent,

2. You have the right to an attorney,

3. If you cannot afford an attorney, one will be appointed for you, and

4. Anything you say can be held against you in a court of law.

After being given his rights, the accused must make a “knowing, intelligent and voluntary” waiver of those rights in order for his confession to be admissible later at trial. A waiver will not be presumed merely from the fact that the accused made a voluntary confession after being informed of his rights. If the accused refuses to waive his rights or asks to consult with a lawyer, then the police must stop their questioning.

The Miranda decision has been extremely controversial. Some critics argue that the rules are overly formalistic and often result in the exclusion of reliable confessions that were voluntarily given. Others feel that it is the best way to assure that all confessions are voluntary and reliable. Several attempts have been made to overturn the decision, but they have been unsuccessful. Although the Supreme Court has developed a number of exceptions allowing admission of some non-Mirandized confessions, they have just recently affirmed its basic holding.

E. Search and Seizure Law

The Fourth Amendment provides a “right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures…” It also provides that all Warrants must be based on “probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Unlike the Fifth and Sixth Amendments, the Fourth Amendment was not adopted mainly to protect the rights of the criminally accused, but of all citizens. Any person whose property has been the subject of an illegal search or seizure may bring a legal action to redress that violation. But the Fourth Amendment is most often used by criminal defendants to try to keep illegally obtained evidence from being used against them.

The United States Supreme Court has developed an exclusionary rule, which prohibits the prosecution from using most evidence that was obtained in violation of a defendant’s Fourth Amendment rights. This rule was not designed to protect the defendant from being wrongly convicted, since in most cases the seized evidence is quite reliable. Rather, it was designed to protect the rights of all citizens, by giving an incentive to the police to keep all of their actions in accordance with the Fourth Amendment.

For this reason, the rule has been very controversial, since it sometimes results in a clearly guilty defendant going free, because the police conducted an illegal search. It may seem, therefore, that the main beneficiaries of the rule are criminals. The benefit to the public in general, to be secure and safe from illegal police conduct, is less direct and less visible. Some of the criticism of the exclusionary rule stems from the fact that the system of rules for determining when a search violates the Fourth Amendment can appear very complicated, technical and difficult to follow, even for a police officer acting in good faith. The Court has attempted to address this problem by developing some exceptions allowing illegally seized evidence to be admitted if the police acted in good faith.

Determining whether a violation of the Fourth Amendment has occurred is a multi-step process. The first step is determining whether a search or seizure has taken place. To constitute a search, police action must violate a person’s “reasonable expectation of privacy.” For example, if an illegal item is in “plain view” to a police officer who is standing in a lawful place, then the owner does not have a reasonable expectation of privacy. If the police stop a motorist and see a gun sitting on the seat, this would not be a search. But if they opened a plain box sitting on the seat and found a gun inside, this would constitute a search.

A seizure can be either of a person or of property. While seizure of property is pretty straightforward, it is more difficult to determine when the seizure of a person has taken place. The Court has held that a seizure of a person has taken place when his freedom to leave is restrained. If the police stop a pedestrian and ask him a question, no seizure has taken place. If the police stop a motorist and ask to see his driver’s license, a “limited” seizure has taken place. But if they order him out of the car and into their patrol car to take him to the station for questioning, then a full blown seizure has occurred.

If either a search or a full-blown seizure has occurred, then in order for it to be legal, the police must show both 1) that they had probable cause and 2) that they either had a warrant, or that there were special circumstances where a warrant is not required.

In order to show probable cause for a search, the police must show that it was more likely than not that evidence of illegal conduct would be found. In order for police to make a full-blown seizure of a person it must be more likely than not that the person had committed an illegal act. In order to make a limited seizure, there is a somewhat lower standard called “articulable suspicion” that is required. The police must have some reason to suspect that the person stopped may have committed a crime.

In addition to having probable cause, police normally have to obtain a warrant before they can make the search. To obtain a warrant they must go before a judicial officer and show that they have probable cause to make the search. There are certain exceptions to the requirement for a warrant. The most important one is for “exigent circumstances,” where the police have reason to fear that a defendant might flee, or destroy evidence, or cause harm to others if an immediate search or seizure is not made.

If the search or seizure is found to be a violation of the Fourth Amendment, then all evidence obtained from it, either directly or indirectly, will normally be inadmissible in the defendant’s criminal trial. For example, let’s assume that police arrest a person for murder without probable cause. During or immediately after the arrest the defendant confesses to the murder and tells them the location of the murder weapon. Neither the defendant’s confession nor the murder weapon will be admissible against the defendant.