The Function of Constitutional Law
The Constitution also guarantees the "due process" rights of all individuals and most importantly the right against self-incrimination. The Fifth Amendment is the section of the U.S. Constitution that protects this right.
The Sixth Amendment, however, provides the framework for fair and speedy trials for criminal offenses. It sets important guidelines for trials including the defendant’s right to be represented by an attorney, to have the nature of the charges against him or her be made known, to confront witnesses , and to be tried in the jurisdiction where the crime was committed. These are just a few of the rights guaranteed by this part of the Constitution.
Most state constitutions, including Kentucky’s, are modeled directly after the U.S. Constitution. Because of this fact, the courts tend to look to the U.S. Constitution when analyzing the provisions and guarantees of a state’s Constitution. However, in some cases, the state constitution is more strict than the federal constitution. In those cases, the Supreme Court of Kentucky has followed its own precedent to provide additional rights or protections for its citizens.
Crucial Amendments and Reforms
The Constitution of the United States, seeping through the cracks of the Bill of Rights, informs and affects almost all criminal proceedings in federal and state courts. The Constitution can be thought of as the basis for our criminal justice system, with established law born from constitutional principles. However, to understand and utilize these principles, one must first understand which ones addressed criminal justice and the prosecution thereof.
The Fourth Amendment pronounced: 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 seized.
In plain language, this serves as the guide for a state’s actions involving searches and seizures of persons and property. Any person who comes under suspicion by law enforcement officials has most likely been the object of a search and/or seizure. The Fourth Amendment requires that before law enforcement officers can search your home, vehicle or possess items on your person, they must generally, absent certain exceptions, obtain permission in the form of search warrants based on probable cause. The Fifth, in pertinent part, 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.
In straightforward language, this is the Amendment which covers the defendant’s right to remain silent, the right to be charged by indictment, the protection against double jeopardy and protects the accused against self-incrimination which would aid in their own conviction. It also prohibits the government from taking private property for a public use without giving just compensation.
The Sixth Amendment embodies: 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 defense.
Simply stated, the Sixth Amendment guarantees defendants the right to a speedy, public trial, the right to an impartial jury, the right to be informed of the charges against them, the right to confront witnesses as well as the right to compulsory process and counsel for rape and other federal crimes.
The Eighth Amendment is clear: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This Amendment is significant in both its protection of the convicted, prohibiting cruel and unusual punishments, and also in its impact on court proceedings, ensuring that excessive bail is not required nor excessive fines imposed.
Due Process and the Right to a Fair Trial
A criminal conviction is only valid when it is obtained with the full protections afforded by the Constitution. The Fifth and Fourteenth Amendments require that no one shall "be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," and that "[n]or shall any person be subject for the same offense 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." U.S. Const. amends. V, XIV, § 1. In addition, the Sixth Amendment guarantees the accused the right to a public trial, the right to an impartial jury, as well as other rights, but also it requires notice of the charges and the opportunity to confront witnesses. U.S. Const. amend. VI. These requirements apply to both federal and state criminal prosecutions, and were initially enunciated and imposed on the states by the United States Supreme Court via its interpretation of the Eighth and Fourteenth Amendments of the United States Constitution. (Supreme Court cases enforcing these rights include Powell v. Alabama, 287 U.S. 45, 53 (1932) (Eight Amendment); and Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment).) So, regardless of whether the accused is charged with robbery, murder, or theft, among many other crimes, he or she has a right to due process and a fair trial. Due process and a fair trial include the right to a trial by an unbiased and impartial jury of peers. Numerous cases have established the right to an unbiased jury. In fact, the word bias comes from the French word bise, meaning "an economy of faith." However, the word bias as used in legal context means something entirely different. "Bias is a general inclination, a leaning toward or against a particular person or interest. A bias may be favorable (prejudice in favor of a party or his witnesses, in favor of a position, etc.) or it may be unfavorable (prejudice against a party, against one party’s principal witness, against the subject matter of a legal dispute, etc.). Bias may be active or passive. An absence of bias or prejudice is commonly referred to as ‘impartiality.’" Birchfield v. Superior Court, 11 Cal. App. 4th 1192, 1198-1199 (Cal. Ct. App. 1992). If the accused, as a result of a prejudiced juror, is convicted, he or she only has those rights guaranteed by the Fourteenth Amendment to appeal.
The Law on Search and Seizure
In general, Fourth Amendment jurisprudence has developed along a spectrum. On one end, warrantless, probable cause-supported searches are clearly permitted, such as when the police are acting in good faith. On the other end, such a search results in suppression. Between the extremes, the validity of a warrantless search and seizure will be determined in light of the degree of actual governmental intrusion into an expectation of privacy, along with the availability of alternative methods of investigation that would have posed less of a threat to citizens’ privacy interests.
At the first extreme, when a warrant does not comport with Fourth Amendment strictures but the officers were acting in good faith, the evidence derived from the unlawful conduct may still be admitted. For example, if officers went before a judge providing probable cause, but the warrant failed to describe the location to be searched, the warrant may still be valid if the police reasonably, but mistakenly, violated the Fourth Amendment. The officer’s own Fourth Amendment violation will not taint evidence obtained from a reasonable prospective of the judge that a proper warrant was issued. Further, numerous Supreme Court cases have held that the independent source doctrine acts to insulate from the exclusionary rule evidence discovered by means too attenuated to be considered the fruit of the official misconduct.
On the contrary, at the other end of the spectrum, the good-faith exception does not insulate the search if it was undertaken just after a warrant had been issued but only moments before delivery. Even a few hours can suffice to sever the connection between the illegality and the evidence.
On either end of the spectrum, though, the process is similar. The government has the burden of proving the validity of a warrantless search by a preponderance of the evidence. If the search and seizure involved the invasion of a protected constitutional interest (like a home), then the search is invalid unless there is probable cause. If there was a valid arrest, however, probable cause is unnecessary.
If the defendant claims that an expectation of privacy was established, the government may defeat standing under the "uninvited ear" rationale—a statement may be used against the defendant if there is evidence that it was overheard by an uninvited ear. Under this rule, the government can theoretically listen to phone conversations even without a search warrant if they are heard by parties who do not have a legitimate interest in the phone conversation. Generally, unwitting or unknowing listeners lack standing to prohibit interception of the conversation.
Experimental techniques are similar in the ambiguity they present. That is, they seem to provide the government vaguely applicable tools with which to monitor citizens at any time. For example, the Supreme Court has noted that "dragnet electronic eavesdropping and unidentified-agent surveillance techniques create a new danger that that the Fourth Amendment was designed to prevent," but stated that government tracking of a suspect’s vehicle for more than a week requires a warrant whenever a sense-enhancing device is used—no matter if the information that the sense-enhancing device collects is publicly available. The Supreme Court limited the presumed privacy of personal data to personal, as opposed to business, records.
Modern technology is becoming an increasingly confusing area of law for Fourth Amendment jurisprudence. The notion that the government has no right to enter a person’s home without a warrant is lost on contemporary jurists who regard homes as mere containers. The law today seems unable to address the true fears raised by the suffocating and ubiquitous presence of governmental oversight.
Miranda Warnings and the Right Against Self-Incrimination
Miranda rights, which stem from the Fifth Amendment of the U.S. Constitution, are a vital concept in criminal law. They are a set of legal protections afforded to individuals in custody and before they are subjected to interrogation.
These rights were established by the landmark Supreme Court case Miranda v. Arizona in 1966, which held that detained suspects must be informed of their rights to an attorney and of their right to be free from self-incrimination before being interrogated. The reasoning behind this ruling was that the suspect should have a clear understanding of their rights before being questioned by police, as many individuals may be unaware of the full extent of these rights or the consequences of waiving them.
The term "if you waive these rights" is important. When an individual is arrested, police officers must inform them of their Miranda rights, which include the right to remain silent and the right to an attorney. Once informed, a suspect has the right to either waive or invoke these rights. If they decide to waive these rights and continue with the interrogation, any statement or confession they may provide cannot be used against them in criminal proceedings .
On the other hand, if the suspect chooses to invoke their right to counsel, no questioning can take place until a lawyer is present. At this point, the police must honor the request and cease all interrogation until a lawyer arrives to counsel their client.
These rights play an integral role in protecting individual freedoms and ensuring that confessions or incriminating statements are not obtained under duress. Speaking without a lawyer present can potentially lead to a false confession, as suspects often feel pressured to speak without fully understanding their rights or the legal implications of not having a lawyer.
Using unconstitutional tactics to extract confessions and incriminate suspects is a violation of an individual’s rights. This is why it is critical for individuals to understand these rights from the moment of an arrest, as doing so can be pivotal to a successful defense strategy.
Saying something to police officers without a lawyer present can have serious and lasting consequences. It can lead to a wrongful conviction or even a death sentence. So, if you or someone you know is arrested, it’s imperative that you immediately invoke your right to an attorney, as it is your best chance for a successful outcome.
Cruel and Unusual Punishment
Cruel & Unusual Punishment is the prohibition against inhumane conditions of confinement, excessive sentences, and the drawing of arbitrariness into the process of dishing out punishment. It seeks to assure that there is no disproportionate impact on individuals. It allows for the evolution of the law to a certain extent; although the prohibition against cruel and unusual punishment is in the Eighth Amendment, the Supreme Court has extended the interpretation to applications in criminal cases.
The death penalty is the most notorious and important factor in sentencing for the vast majority of defendants. At times, the penalty can be debated as a matter of right or right vs. wrong. However, in Supreme Court jurisprudence, it is applied methodically and under different standards. All in the context of being rejected by the courts as cruel and unusual punishment as it would be applied in specific cases.
Cruel and unusual punishment law is important as a matter of constitutional law, and as a matter of punishment for states. The issue has continued to reach the Supreme Court as time goes on. Cases include Eighth Amendment challenges to the death penalty; lethal injection as an execution method; the circumstances under which mentally retarded persons may be executed; and challenges under the Eighth Amendment to the length and conditions of confinement of state prisoners.
States and the U.S. Federal System have different applications. For example, the Supreme Court invalidated the federal death penalty’s mandatory sentencing scheme in 2002 because the required extra step of the sentencing hearing led to inconsistent results and a high failure rate for reviewing courts. At the same time, the Court has invalidated states’ death penalty schemes for having no means to avoid the death penalty for less culpable defendants accused of less culpable crimes.
Cruel and unusual punishment is a developing area of the law that includes not only the punishment meted out directly by the court, but also sentences and the conditions of confinement in criminal cases.
State Authority vs. Individual Liberties
The ongoing challenge of balancing the power of the state and the rights of the individual is a central theme in constitutional law. Many of these cases are foundational products of barroom argument held during our panel discussions; and that is entirely appropriate because the struggles over the role of government, and how to best protect individual freedoms, are the foundation of constitutional law. I focus here on the Fourth and Sixth Amendments, as the Supreme Court’s application of the Fourth Amendment has had profound effects in the criminal law arena, and the Sixth Amendment has been the subject of continued debate going back decades.
The Fourth Amendment protects citizens from unreasonable search and seizures. Since the late 1950’s, when the Supreme Court first determined that the Fourth Amendment was enforceable against the states through the Due Process Clause of the Fourteenth Amendment (Mapp v Ohio), it has been a battleground for some of the hottest issues in constitutional debates. On the one hand, police officers need to have the ability to search and seize in order to fight crime. Over the years, the Supreme Court has created a patchwork of exceptions to the warrant requirement to allow officer to do their job – "consent" searches, "stop and frisk" searches, and "automobile" searches being the most widely known.
On the other hand, however, the framers of the Bill of Rights were clearly concerned about preserving the citizens’ right not to be subject to random or arbitrary searches. These concerns still resonate today, and have created new debates in constitutional scholarship, particularly in the area of digital storage. Because of the ease in which officers can search citizens’ computers, phones and other devices, and the vast quantity of information present in those devices, scholars have questioned whether the traditional "exigent circumstances" mark out an appropriate exception to the warrant requirement.
"This case is like no other that I have ever seen," said Judge Andrew Napolitano in comment on Florida v Jardines, a recent Fourth Amendment case in which the Supreme Court determined that citizens have a reasonable expectation of privacy in the items immediately outside of their home, and when officers smell marijuana outside of a home, the warrantless entry without probable cause that the contraband was entering the home was illegal. The debate over whether citizens have a reasonable expectation of privacy in digital storage is ongoing as the number of electronic devices continues to increase.
Like the Fourth Amendment, the Sixth Amendment is a battle-ground for many reasons. Primarily, the Sixth Amendment’s guarantee of counsel ensures that those who cannot afford an attorney will still have one appointed to them, and allows that attorney to fully defend the accused. In short, it is a crucial bulwark to any potential abuse of the criminal law system. There have been a myriad of cases in this aren including the high-profile Strickland v Washington case which established the standard of review applied when claims of ineffective assistance of counsel are raised (and has been decided in favor of the prosecution in Wisconsin v Witkowski and United States v Upshaw).
Further, and more relevant to the current legal environment, the Sixth Amendment is a topic of many discussions dealing with multiculturalism in the criminal law arena. Many of these arguments center around the context of a fear of racial discrimination, and the ways in which that interacts with the Sixth Amendment. Courts have dealt with this issue on both sides: on the one hand, the Supreme Court’s decision in Batson v Kentucky ensures that an attorney cannot strike a prospective juror merely due to race. But on the other hand, I discuss throughout this blog the concerns that the Sixth Amendment is unduly hurting members of minority groups through the enforcement of anti-terrorism statutes.
Significant Supreme Court Cases
Understanding Constitutional Law in Criminal Justice
The Supreme Court is the final arbiter of constitutional questions, and through its sprawling interpretations of the Constitution’s guarantees, it has profoundly affected criminal justice law and practices. In Mapp v. Ohio (1961), the Court overturned an Ohio woman’s conviction for possessing pornographic material after the police conducted an "unreasonable" search and seizure of her home in violation of her Fourth Amendment rights against "unreasonable searches and seizures". Even if the material had been in violation of state law, the search used to find it would nonetheless have been unreasonable, and therefore the evidence couldn’t be used against her in court. This "exclusionary rule" is now commonplace in criminal trials. In Gideon v. Wainwright (1963), the Court held that all states are required to provide an attorney to defendants who can’t afford one, under the Sixth Amendment guarantee that the accused "shall enjoy the right…to have the Assistance of Counsel for his defence." States that fail to do so will have their convictions overturned. The Court held in Miranda v. Arizona (1966) that the Fifth Amendment requires law enforcement to inform arrested suspects of their rights — namely , to remain silent and have an attorney present when being questioned. Any confession obtained from a suspect who has not been made aware of these rights cannot be used against them. The Miranda warning is now a part of common parlance. In 1972, the Court ruled in Furman v. Georgia that existing capital sentence statutes gave juries too much power and showed no consistency in how they should be applied. The Court’s ruling effectively invalidated all of the then-existing 40 death penalty statutes. By 1976, the Court had ruled in Gregg v. Georgia that a new generation of capital statutes, giving judges or juries clear guidelines for application of the death penalty, satisfied the Eighth Amendment’s prohibition against "cruel and unusual punishment", and the death penalty was reinstated. In 2012, the Supreme Court ruled in Miller v. Alabama that it is unconstitutional for a court to sentence a juvenile to life without possibility of parole for homicide. The Eighth Amendment’s ban on cruel and unusual punishment, the Court said, prohibits any sentence of life without parole for a juvenile offender who didn’t kill anyone or wasn’t the major participant in the killing.