72 Civil Liberties: How are rights of the accused protected?

Learning Objectives

  • Identify the rights of those suspected or accused of criminal activity
  • Explain how Supreme Court decisions transformed the rights of the accused
  • Explain why the Eighth Amendment is controversial regarding capital punishment

In addition to protecting the personal freedoms of individuals, the Bill of Rights protects those suspected or accused of crimes from unfair or unjust treatment. The prominence of these protections in the Bill of Rights may seem surprising. The impetus to ensure fair, just, and impartial treatment to everyone accused of a crime—no matter how unpopular—is understandable given the colonists’ experience of British rule and the use of their legal system to punish rebels and their sympathizers for political offenses, . It is also important to note that the revolutionaries and the eventual framers of the Constitution wanted to keep the best features of English law as well.

In addition to the protections outlined in the Fourth Amendment (pertaining to investigations prior to criminal charges), the next four amendments pertain to those suspected, accused, or convicted of crimes, and people engaged in other legal disputes. At every stage of the legal process, the Bill of Rights incorporates protections for these people.

The Fifth Amendment

The Fifth Amendment includes many of the provisions dealing with the rights of the accused; accordingly, it is one of the longest in the Bill of Rights. The Fifth Amendment states in full:

“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.”

The first clause requires that serious crimes be prosecuted only after a grand jury issues an indictment. The courts require this only for felonies; less serious crimes can be tried without a grand jury. This provision does not apply to the states because it has not been incorporated; many states alternatively require a preliminary hearing where a judge decides if there is enough evidence to hold a full trial. Active armed forces members accused of crimes are not entitled to a grand jury.

The Fifth Amendment also protects individuals against double jeopardy, which is prosecuting a person twice for the same criminal charges. No one who has been acquitted (found not guilty) of a crime can be prosecuted again for that same crime. The prohibition against double jeopardy has its own exceptions. It prohibits a second prosecution only at the same level of government (federal or state) as the first; the federal government can try you for violating federal law, even if a state or local court finds you not guilty of the same charges. For example, in the early 1990s, several Los Angeles police officers accused of assaulting motorist Rodney King during his arrest were acquitted of charges in a state court, but some were later convicted in a federal court of violating King’s civil rights.

The double jeopardy rule does not prevent someone from recovering damages in a civil case—a legal dispute between individuals over a contract or compensation for an injury—that results from a criminal act, even if the person accused of that act is acquitted of criminal charges. One famous case from the 1990s involved former football star and television personality O. J. Simpson. Simpson was acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a criminal court but was ruled responsible for their deaths in a subsequent civil case. He was forced to forfeit most of his wealth to pay damages to their families.

Perhaps the most famous provision of the Fifth Amendment is its protection against self-incrimination, or the right to remain silent. This provision is so well known that we have a phrase for it: “taking the Fifth.” People are not forced to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not testify in his or her own defense, the prosecution cannot use that silence as evidence of guilt or imply that an innocent person would testify. This provision became embedded in the public consciousness following the Supreme Court’s 1966 ruling in Miranda v. Arizona, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody.[1]

However, contrary to some media depictions of the Miranda warning, law enforcement officials do not necessarily have to inform suspects of their rights before they are questioned in situations where the suspect is free to leave.

Like the Fourteenth Amendment’s due process clause, the Fifth Amendment prohibits the federal government from depriving people of their “life, liberty, or property, without due process of law.” Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent and fair procedures to decide when to limit people’s freedoms; in other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards is applied to the legal prosecution of crimes.

The final provision of the Fifth Amendment has little to do with crime at all. The takings clause says that “private property [cannot] be taken for public use, without just compensation.” This provision, along with the due process clause’s provisions limiting the taking of property, can be viewed as a protection of individuals’ economic liberty: their right to obtain, use, and trade tangible and intangible property for their own benefit. For example, you have the right to trade your knowledge, skills, and labor for money through work or the use of your property, or trade money or goods for other things of value, such as clothing, housing, education, or food.

The greatest recent controversy over economic liberty results from the use of the power of eminent domain to take property for redevelopment. Traditionally eminent domain was primarily used to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require specific geographic routes. As any single property owner could effectively block a particular route or extract an unfair price for land if it was the last piece needed for a route, there are reasonable arguments for using eminent domain as a last resort. This is particularly true for projects that convey substantial benefits to the public at large.

Increasingly though, eminent domain has been used to enable economic development for both government and private interests. Beneficiaries range from politically connected big businesses such as car manufacturers building new factories to highly profitable sports teams seeking ever-more-luxurious stadiums. While we traditionally think of property owners as well-off people whose rights are inherently more secure, frequently these cases pit lower- and middle-class homeowners against multinational corporations or multimillionaires with the ear of city and state officials. In a notorious 2005 case, Kelo v. City of New London, the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical company’s corporate campus.[2]

The case led to a public backlash against eminent domain and subsequent legal changes in many states making it harder for cities to take property from one private party and give it to another for economic redevelopment.

A photo of the inside of a football stadium, showing the field in the foreground and rows of empty seats in the background.
AT&T Stadium in Arlington, Texas, sits on land taken by eminent domain. (credit: John Purget)

Some disputes over economic liberty have gone beyond the idea of eminent domain. Recently the emergence of on-demand ride-sharing services like Lyft and Uber, direct sales by electric car manufacturer Tesla Motors, and short-term property rentals through companies like Airbnb have led to conflicts between people seeking to offer profitable services online, states and cities trying to regulate these businesses, and the incumbent service providers that compete with these new business models. In the absence of new public policies to clarify rights, the path forward is often determined through norms established in practice, by governments, or by court cases.

The Sixth Amendment

Once someone has been charged with a crime and indicted, the next stage in a criminal case is the trial. The Sixth Amendment governs these criminal trials; in full, it states:

“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 [sic].”

The first guarantee is the right to a speedy, public trial by an impartial jury. Although the time allowed between an indictment and the trial is not specified, the Supreme Court notes that excessively lengthy delays must be justified and balanced against the potential harm to the defendant.[3] In effect, the speedy trial requirement prevents the government from detaining people indefinitely. The courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant’s right to a fair trial, it can be held behind closed doors. Prosecutors can request closed proceedings only in certain, narrow circumstances (i.e., to protect witnesses from retaliation or to guard classified information). The prosecution must also be made in the “state and district” where the crime was committed; however, if the accused believe pre-trial publicity or other factors compromise their right to a fair trial where the crime occurred, they may ask for a change of venue (location) for that trial.

link to learningAlthough the Supreme Court’s proceedings are not televised and there is no video of the courtroom, audio recordings of the oral arguments and decisions announced in cases have been made since 1955. A complete collection of these recordings can be found at the Oyez Project website along with full information about each case.

Most of the accused decline this right to a jury trial. A plea bargain is an agreement with the prosecutor in which the defendant pleads guilty to the charge(s) in question or to less serious charges in exchange for more lenient punishment. There are a number of motivations for this. The evidence against the accused may be so overwhelming that conviction is a near-certainty, and avoiding the more serious penalty (perhaps even the death penalty) is better than taking the small chance of acquittal. Someone accused of being part of a larger criminal organization might agree to testify against others in exchange for lighter punishment. Prosecutors facing a difficult trial can seek quick closure and a win by securing convictions for offenses they know they can prove, while avoiding a lengthy trial on other charges they might lose.  In general, they use prosecutorial discretion to manage cases and use plea bargaining to bring efficiencies and streamlining to the process.

The promise of an impartial jury is a critical component. The prosecution and the defense can reject potential jurors they believe cannot fairly decide that case without prejudice. The courts have also ruled that the composition of the jury as a whole may itself be prejudicial; potential jurors may not be excluded simply because of their race or sex, for example.[4]

The accused also have the right to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by the prosecution. In general, the only testimony acceptable in a criminal trial must be given in a courtroom and be subject to cross-examination; hearsay, or testimony by one person about what another person has said, is generally inadmissible. Hearsay may be presented as evidence when it is an admission of guilt by the defendant or a “dying declaration” by a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.

Finally, the Sixth Amendment guarantees the right of the accused to the assistance of an attorney in their defense. Historically, for most crimes many states did not provide attorneys to the accused when could not afford one themselves; even when provided, their assistance was often inadequate. This situation changed as a result of the Supreme Court’s decision in Gideon v. Wainwright (1963).[5]

A poor drifter named Clarence Gideon was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried, convicted and sentenced to a five-year prison term. While in prison—still without legal assistance—he drafted a handwritten appeal and sent it to the Supreme Court, which agreed to hear his case. The justices unanimously ruled that Gideon, and anyone else accused of a serious crime, was entitled to the assistance of a lawyer even if they could not afford one, as part of the general due process right to a fair trial.

Photo A is of a handwritten petition. Photo B is of Clarence Gideon.
The handwritten petition for appeal (a) sent to the Supreme Court by Clarence Gideon, shown here circa 1961 (b), the year of his Florida arrest for breaking and entering.

The Supreme Court later extended the Gideon v. Wainwright ruling to apply to any case in which the accused faced the possibility of “loss of liberty,” even for one day. The courts have also overturned convictions in which people had incompetent or ineffective lawyers through no fault of their own. The Gideon ruling has increased the demand for professional public defenders, paid by the government to represent those who cannot afford an attorney themselves.  Alternatively, some states require practicing lawyers to represent poor defendants on a pro bono basis (essentially, donating their time and energy to the case).

link to learningThe National Association for Public Defense represents public defenders, lobbying for better funding for public defense and improvements in the justice system in general.


Criminal Justice: Theory Meets Practice

Normally a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against him or her, to be made aware of the right to counsel, and to enter a plea. Other hearings may be held to decide on the admissibility of evidence seized or otherwise obtained by prosecutors.

If the two sides cannot agree on a plea bargain, the next stage is jury selection. A pool of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in most states) and one or two alternate jurors. All hear the evidence in the trial; unless an alternate must serve, the original twelve decide whether the evidence determines guilt or innocence beyond a reasonable doubt.

In the trial itself, the lawyers for the prosecution and defense make opening arguments, followed by testimony of witnesses for the prosecution (and any cross-examination), and then testimony of witnesses for the defense, including the defendant if he or she chooses. Additional prosecution witnesses may be called to rebut testimony by the defense. Finally, both sides make closing arguments. The judge then issues instructions to the jury, including an admonition not to discuss the case with anyone outside the jury room. The jury members leave the courtroom to enter the jury room and begin their deliberations.

A photo of a typical courtroom, empty of people. In the foreground are benches for attendees, then two tables in the center for the defense and prosecution, and in the background the judge’s stand. To the left of the judge’s stand is a row of chairs for the jury, and to the right of the judge’s stand is the witness stand.
A typical courtroom in the United States. The jury sits along one side, between the judge/witness stand and the tables for the defense and prosecution.

The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review evidence or to hear transcripts of testimony. They deliberate in secret and their decision must be unanimous; if they are unable to agree on a verdict after extensive deliberation, a mistrial may be declared, which effectively requires the prosecution to try the case all over again with a new jury.

A defendant found not guilty of all charges will be immediately released unless other charges are pending (e.g., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of one or more offenses, the judge will choose an appropriate sentence based on the law and the circumstances; in the federal system, this sentence will apply guidelines that assign point values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should be subject to capital punishment or life imprisonment.

The reality of court procedure is much less dramatic and exciting than what is typically portrayed in television shows and movies. Nonetheless, most Americans will participate in the legal system at least once in their lives as a witness, juror, or defendant.

Have you or any member of your family served on a jury? If so, was the experience a positive one? Did the trial proceed as expected? If you haven’t served on a jury, is it something you look forward to? Why or why not?

The Seventh Amendment

The Seventh Amendment deals with the rights of those engaged in civil disputes; These are disagreements between individuals or businesses typically seeking compensation for some harm. For example, in an automobile accident, the person responsible is compelled to compensate any others (either directly or through his or her insurance company). Much of the legal system’s work consists of efforts to resolve civil disputes. The Seventh Amendment, in full, reads:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Because of this provision, all trials in civil cases must take place before a jury unless both sides waive their right to a jury trial. However, this right is not always incorporated; in many states, civil disputes—particularly those involving small sums of money which may be heard by a dedicated small claims court—need not be tried in front of a jury and may instead be decided by a judge working alone.

The Seventh Amendment limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury. For example, if a jury decides a person was responsible for an action and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional common-law distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular case.

The Eighth Amendment

The Eighth Amendment says, in full:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Bail is a payment of money allowing the accused to be freed pending trial; if you “make bail” in a case and do not show up for your trial, you will forfeit the money you paid. Since many cannot afford bail directly, they may get a bail bond, which allows them to pay a fee (typically 10 percent) to a bond seller, who in turn pays the full bail amount to the court. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, the court may identify the accused as a flight risk or a risk to the community if freed before trial, and may deny bail and hold the accused in jail while awaiting trial.

Bail amounts are sometimes challenged as excessive, but such challenges are rarely successful. The Supreme Court has defined an excessive fine as one “so grossly excessive as to amount to deprivation of property without due process of law” or “grossly disproportional to the gravity of a defendant’s offense.”[6] In practice the courts have rarely struck down fines as excessive either.

The ban on “cruel and unusual punishments” is the most controversial Eighth Amendment provision. Various torturous forms of execution common in the past—drawing and quartering, burning people alive, and the like—are prohibited.[7] Recent controversies over lethal injections and firing squads suggest the topic is still salient. While the Supreme Court has never established a definitive test to define a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when some outside observers may reasonably see that punishment as disproportionate or excessive.[8]

In recent years the Supreme Court has issued a series of rulings substantially narrowing death penalty application. As a result, defendants with mental disabilities may not be executed.[9] Defendants under eighteen years of age when they committed an offense otherwise subject to the death penalty may not be executed.[10] The court has generally rejected the use of the death penalty for crimes that did not result in the death of another human being, most notably in the case of rape.[11]

While permitting the death penalty to be applied for murder in some cases, the Supreme Court has generally struck down laws requiring the the death penalty in certain circumstances. Still, the United States is among ten countries with the most executions worldwide.

Chart showing the rate of execution in the 10 countries with the highest execution rates. The chart is titled
The United States has the ninth highest per capita rate of execution in the world.

However, it appears that the public mood may have shifted against the death penalty, perhaps due in part to an overall decline in violent crime. The reexamination of past cases through DNA evidence has revealed dozens in which people were wrongfully executed.[12] For example, Claude Jones was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his; however, with better DNA testing technology, it was later found to be that of the victim.[13] Perhaps as a result of this and other cases, seven additional states have abolished capital punishment since 2007. As of 2015, nineteen states and the District of Columbia no longer apply the death penalty in new cases, and several other states do not carry out executions despite sentencing people to death.[14] It remains to be seen whether this gradual state trend to eliminate the death penalty will continue, or whether the Supreme Court will eventually decide to follow former Justice Harry Blackmun’s decision to “no longer… tinker with the machinery of death” and abolish it completely.

Questions to Consider

  1. Explain why someone accused of a crime might negotiate a plea bargain rather than exercising the right to a trial by jury.
  2. Explain the difference between a criminal case and a civil case.

Terms to Remember

double jeopardy–a prosecution pursued twice at the same level of government for the same criminal action

economic liberty–the right of individuals to obtain, use, and trade things of value for their own benefit

eminent domain–the power of government to take or use property for a public purpose after compensating its owner; also known as the takings clause of the Fifth Amendment

Miranda warning–a statement by law enforcement officers informing a person arrested or subject to interrogation of his or her rights

plea bargain–an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial

self-incrimination–an action or statement that admits guilt or responsibility for a crime

  1. Miranda v. Arizona, 384 U.S. 436 (1966).
  2. Kelo et al. v. City of New London et al., 545 U.S. 469 (2005).
  3. See, for example, Barker v. Wingo, 407 U.S. 514 (1972).
  4. See, for example, Batson v. Kentucky, 476 U.S. 79 (1986); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994).
  5. Gideon v. Wainwright, 372 U.S. 335 (1963).
  6. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909); United States v. Bajakajian, 524 U.S. 321 (1998).
  7. See, for example, the discussion in Wilkerson v. Utah, 99 U.S. 130 (1879).
  8. Perhaps the most notorious example, Harmelin v. Michigan, 501 U.S. 957 (1991), upheld a life sentence where the defendant was convicted of possessing just over one pound of cocaine (and no other crime).
  9. Atkins v. Virginia, 536 U.S. 304 (2002).
  10. Roper v. Simmons, 543 U.S. 551 (2005).
  11. Kennedy v. Louisiana, 554 U.S. 407 (2008).
  12. Elizabeth Lopatto, "How Many Innocent People Are Sentenced To Death?," Forbes, 29 April 2014. http://www.forbes.com/sites/elizabethlopatto/2014/04/29/how-many-innocent-people-are-sentenced-to-death/#6e9ae5175cc1 (March 1, 2016).
  13. Dave Mann, "DNA Tests Undermine Evidence in Texas Execution: New Results Show Claude Jones was Put to Death on Flawed Evidence," Texas Observer, 11 November 2010. http://www.texasobserver.org/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution/ (March 4, 2016).
  14. See, for example, "States With and Without the Death Penalty," Death Penalty Information Center, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (March 4, 2016).


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