Rights of the Accused

The Framers of the Constitution had fresh memories of a government that accused people of crimes they did not commit and then convicted them in unfair trials. Consequently, they went to great lengths to assure that the new government they established would not engage in such practices. Toward that end, the Constitution and the Bill of Rights guarantee a series of important protections for individuals accused of committing crimes in the United States.

Given the high rates of crime in this nation, some have suggested that the rights of the accused be curtailed. There have been, in fact, several efforts at the national level and in the states to enact "victims' rights" laws, to limit the number of appeals that can be brought by convicted criminals and to make the penalties for crime more severe. In terms of balancing liberty and order, these efforts are clearly aimed at promoting more order. The Constitution, however, keeps the balances tipped decidedly in favor of the accused. In this nation's criminal judicial system, the assumption is that mistakes will be made. Instead of erring on the side of punishing the innocent, however, it is a system that is more likely to let a guilty person go unpunished.

Protections for the Accused

When an individual is arrested and charged with a crime, he or she is guaranteed a variety of rights aimed at insuring that the legal proceedings which follow will be fair.

The Writ of Habeas Corpus

From the outset, the burden of proof is on the government to justify the arrest and detention of a suspect in a crime. Article I, Section 9 of the Constitution guarantees the privilege of a writ of habeas corpus. One of the most serious abuses of governmental power that the Framers sought to prevent was the imprisonment or detention of citizens without an indication of why they were being held. Habeas corpus is a Latin term literally meaning "you have the body." A writ of habeas corpus is a directive from a court requiring the government to justify the imprisonment of a citizen. Because of the writ of habeas corpus guarantee, an individual cannot be held for more than a short period of time without being formally charged with a crime.

Of the habeas privilege, the Supreme Court has declared that the "government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release" (see Fay v. Noia (1963)). Indeed, a large number of criminal conviction appeals are raised under the habeas corpus privilege. Individuals who have been convicted of crimes in spite of their professed innocence or a purportedly flawed trial may demand that the government justify his or her physical confinement. To justify the incarceration, it is often necessary to review the record of the trial that produced the guilty verdict as well as the evidence that was presented. In some cases, a court may conclude that an individual is being wrongfully imprisoned and his or her "immediate release" will be ordered.

Trial by Jury

One of the most important rights of an individual formally charged with a "serious crime" is the right to a jury trial. This right is guaranteed in Article III of the Constitution and by the Sixth Amendment. Persons accused of crimes have the right to have their guilt or innocence determined by a panel of fellow-citizens. In federal cases, formal charges cannot even be filed unless a grand jury is convened and issues an indictment. The jury trial and grand jury guarantees are intended to protect private citizens from over-zealous police officers, prosecutors and judges. By interjecting the wisdom and judgment of other private individuals into the process, an effective check on law enforcement and on the judicial system is maintained.

In its rulings, the Supreme Court has recognized the importance of jury trials and has set a high threshold for maintaining the impartiality of jurors. In one famous case, a bailiff was overheard by some members of a jury to say, "Oh that wicked fellow, he is guilty." The Court ruled that the comment had unfairly biased the jury against the defendant and a new trial was ordered (see Parker v. Gladden (1966)).

While jury trials are guaranteed by the Constitution, there are several instances in which a trial is conducted without a jury. First, persons accused of crimes can waive their right to a jury trial, perhaps believing that a judge will be more understanding of the situation. Additionally, the Court has ruled that "serious crimes" are only those that carry a possible penalty of at least a $500 fine or six months in jail (see Blanton v. North Las Vegas (1989)).


In addition to the guarantee of a jury trial, the Fifth Amendment states that no person "shall be compelled in a criminal case to be a witness against himself." The accused, however, cannot simply avoid testifying because of potential embarrassment. Rather, they must have a legitimate concern that their testimony will contribute to their conviction of a crime. Persons accused of crimes or witnesses in legal proceedings will often invoke this right by "pleading the Fifth" or by "claiming their Fifth Amendment rights."

Most Americans (at least those who have watched any "cop" shows), know that when someone is arrested, they must be "read their rights." The "reading of rights" to an accused individual is often referred to as the "Miranda warning." (The warning is named after an individual who maintained that he was not aware of his Fifth Amendment rights when he confessed to a crime immediately after being arrested.) In Miranda v. Arizona, the Supreme Court concluded:

The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

In many instances, a prosecutor or investigator would rather hear what an individual has to say than attempt to prosecute them based on their testimony. In such cases, individuals may be granted immunity in exchange for providing information about a crime. For example, in the investigation of President Clinton's relationship with Monica Lewinsky, Lewinsky was granted immunity in exchange for her testimony about her relationship with Clinton. Prosecutors commonly grant immunity to persons suspected of committing lesser crimes if their testimonies might help convict a more prominent suspect of a more serious crime.

"Double Jeopardy"

Persons accused of crimes are also protected from what is called "double jeopardy." In the words of the Fifth Amendment, no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." If the result of a jury trial is an acquittal (the jury finds the defendant "not guilty"), there can be no further legal action taken against the defendant for that crime. One exception to this rule occurs when a defendant challenges his or her guilty conviction and is granted a new trial (typically because of some procedural error in the original trial). In this case, the "jeopardy" posed by the first trial is eliminated and a new trial can be convened, putting the defendant in jeopardy as if for the first time for the alleged crime.

Another exception to the double jeopardy provision is really not an exception. It is possible for an individual, such as O.J. Simpson, to be tried in criminal court for a crime and then be sued in civil court for damages caused by the same criminal act. The laws and rules that apply to the two different legal systems are sufficiently different that, for the purposes of the Fifth Amendment, they are considered distinct. Additionally, an individual may also be tried for different crimes committed in the course of one action or set of actions. For example, when Timothy McVeigh was tried in Federal Court for bombing the Murrah Federal Building in Oklahoma City, he had been charged with murdering federal government employees and with destroying federal government property. The possibility remains that McVeigh could still be tried in Oklahoma state court for the murders of the other people killed in the bombing. Because they are separate crimes (as defined in the law), another trial would not bring about "double jeopardy."

No Excessive, Cruel or Unusual Fines or Punishments

The Eighth Amendment forbids the government from imposing excessive bail, fines or "cruel and unusual" punishments. Given the era during which the Eighth Amendment was drafted and ratified, one of its obvious intents was to prohibit torture. Under the limitations imposed by the Constitution, penalties for crimes may include fines or incarceration, but not excessively painful or physically harmful penalties such as whippings or branding, both common practices in the 1700s. The Court has also interpreted the Eighth Amendment to prohibit imprisonment in unsanitary or inhumane conditions. However, the Court has been reluctant to define such conditions too broadly. In Rhodes v. Chapman (1981), the Court reversed a lower court's decision that declared "double celling," the housing of two prisoners in one small cell, was unconstitutional:

The double celling made necessary by the unanticipated increase in prison population did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement. Although job and educational opportunities diminished marginally as a result of double celling, limited work hours and delay before receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of this kind simply are not punishments. We would have to wrench the Eighth Amendment from its language and history to hold that delay of these desirable aids to rehabilitation violates the Constitution.

One of the most important standards the Court has used in determining whether a punishment or fine violates the Eighth Amendment is a test of proportionality. The Court has ruled that, under certain circumstances, the death penalty may be a "cruel and unusual" punishment, but only where it is not proportionate to the crime committed.

Search Warrants

The Fourth Amendment forbids the search or seizure of an individual's private property without a warrant. In practice, this means that a police officer or other government agent cannot enter your home to search it and seize evidence unless he or she has the permission of a judge to do so. When a law enforcement official is investigating a crime, he or she must assemble enough evidence to convince a judge that the violation of a suspect's privacy and property is "warranted." The standard for demonstrating the need for a warrant is that the government must show that it has "probable cause." Of this standard, the Supreme Court observed:

In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . Probable cause exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed (see Draper v. United States (1959)).

Probable Cause: A Case Study

Police officers are faced with difficult decisions every day. Is a warrant needed to make an arrest or to seize evidence or is there "probable cause" to proceed without a warrant? Take the case of narcotics agent who regularly gets information from a reliable informant. The information the informant has given the agent in the past has led to several arrests and convictions. One day, the informant tells the agent about a man, whom the agent has never met, who has gone to another city to purchase a 20 kilograms of crack. Based on the tip, the agent goes to the airport, recognizes the man from the informants description, arrests him and seizes the crack. 

Did the agent have probable cause to arrest and search the man without a warrant? Could the evidence be admitted in the man's trial? In a similar case, the Supreme Court ruled that the arrest was appropriate and the evidence admissible.

Vehicles present another exception to the search warrant requirement. Because they can easily be moved, hidden or even destroyed, evidence could be permanently lost if a police officer, again acting under "probable cause," was not able to search a vehicle at the time it is stopped. So long as the search is made in connection with an otherwise lawful traffic stop, the Court has allowed probable cause searches of cars, trucks and other vehicles.

Another instance in which evidence can be seized without a warrant is when a police officer is in "hot pursuit" of a suspect. If the suspect enters his or her home, the officer is free to follow them in, make an arrest and seize whatever evidence is found there. Finally, consistent with its recent emphasis on the need to establish order and control crime, the Court has ruled that evidence obtained in "good faith," although in violation of the Fourth Amendment, may, under certain circumstances, still be admissible in a court of law.

The "Due Process of Law"

The Constitution and the Bill or Rights guarantee several specific rights of the accused, many of which have been discussed above. In addition to these narrowly defined rights, the Fifth and Fourteenth  Amendments also provide the broad guarantee that no one shall be deprived of "life, liberty, or property, without due process of law."

The "due process" guarantee includes the rights outlined in the Constitution as well as others not specifically mentioned. In fact, some observers have referred to the due process clauses as the "wild card" of the Constitution because of the opportunity they provide for the judiciary to interpret individual rights expansively. In the most simple terms, however, the due process guarantees of the Constitution guarantee that individuals accused of crimes will be given a fair trial. This includes the guarantee of a jury trial, the right against self-incrimination and others already discussed. Other specific due process guarantees include the right of the accused to confront their accusers and to compel favorable witnesses to testify in their behalf (Sixth Amendment).

Perhaps the most significant expansion the Supreme Court has made to the due process rights of the accused came in its landmark decision in Gideon v. Wainwright. Gideon had been charged with breaking and entering and, appearing before a Florida judge, requested a court appointed attorney because he did not have the money to hire one himself. Under Florida law at the time, public defenders could only be provided for capital offense cases, cases in which the accused be sentenced to death if found guilty.

Gideon defended himself as best he could but was convicted nonetheless. In a later appeal of his conviction, the Supreme Court ruled that Gideon's due process rights had been violated when he was not granted his request for legal counsel. Commenting on its ruling, the Court observed:

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

On the basis of this ruling, all persons accused of felonies must be provided court appointed attorneys if they cannot afford to hire them on their own. This ruling is emblematic of a system which extends a significant menu of rights to persons accused of crimes in the United States of America. Through these rights, the people of this nation are provided significant protections from unfair and unjust accusations and punishments.