The Bill of Rights: The Rights of the Accused

by Jacob G. Hornberger, Posted June 22, 2005

Among the legitimate purposes of government is the punishment of those who violate the rights of others through the commission of violent or forceful acts, such as murder, rape, robbery, theft, burglary, or trespass. As the Framers understood, however, the matter does not end there because an important inquiry immediately arises: How do we ensure that people are not convicted of crimes they havent committed? Thats the purpose of the Sixth Amendment to protect the innocent from being convicted and punished. The Sixth Amendment reads as follows:
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.

The idea behind the right to a speedy trial is to ensure that a federal prosecutorial hammer is not held over someones head for an indefinite period of time and to prevent indefinite detentions of people accused of crimes. The importance of this right was emphasized by the U.S. Supreme Court in Klopfer v. North Carolina (1967):
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, We will sell to no man, we will not deny or defer to any man either justice or right; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166).

In U.S. v. Ewell (1966), the Supreme Court stated that the provision is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself. The idea of a public trial is to ensure that government prosecutorial actions are exposed to public view, so as to discourage abuses of prosecutorial power. The old English Star Chamber, whose proceedings were held in secret and which was a model for prosecutorial abuse, comes to mind. So does Germanys Peoples Court under the Hitler regime. As the Supreme Court stated in In Re Oliver (1948),
The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchys abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty.... Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.

Jury trials and their location As I pointed out in my January Freedom Daily article, trial by jury is one of the ultimate safeguards of a free society because of the power that the jury has to acquit an accused if it believes that the law that he is accused of violating is an unjust law.

The reason that federal trials are required to be held in the state and district where the crime was committed is to ensure that federal officials dont require a defendant to travel hundreds or thousands of miles away from where the witnesses probably reside and where the defendant might live.

Notice of the charges and confronting witnesses The right to be informed of the nature and cause of the accusation requires a formal written charge (i.e., a grand jury indictment) detailing the offense with which the accused is charged, which better enables him to defend himself against the charges. Among the most important rights is the right to confront the witnesses on whose testimony the government is relying to prosecute the accused. This right involves two important legal principles hearsay and cross-examination. Hearsay is a statement that is made by a person outside the courtroom and, therefore, not subject to being questioned or challenged through cross-examination by the accused or his lawyer. For example, suppose that during a criminal investigation, witness Smith tells Officer Jones, I saw Roberts shoot the victim. At trial, the government calls Officer Jones to the stand and asks him to relate what witness Smith told him during the investigation. Officer Jones says, He told me that he personally saw the defendant shoot the victim. The officers statement would constitute hearsay because hes relating what someone else told him outside the courtroom. While Robertss attorney could cross-examine the officer and challenge whether witness Smith actually told him that, the problem that the defense attorney really faces is that he cant cross-examine witness Smith about the accuracy of his statement. Why is cross-examination so important? Because the jury is then able to carefully observe the demeanor of the witness as his version of the facts is being challenged through a rigorous cross-examination. The jury is better able to judge whether the witness is lying (which witnesses do sometimes) or telling the truth. As the U.S. Supreme Court put it Pointer v. Texas (1965),
It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case.... The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution.

By the same token, the accused has the right to have compulsory process for obtaining witnesses in his favor. What that means is that if the accused needs the testimony of a reluctant or recalcitrant witness to help establish his innocence, he has the right to secure the issuance of a federal subpoena, which is served on the witness by a U.S. marshal and which orders the witness to appear at trial, on pain of fine and imprisonment for failing to do so. (Whether the compulsory-process clause violates libertarian principles is an interesting issue for another time.)

Right to counsel Finally, the Sixth Amendment guarantees that a person accused of a crime has the right to have an attorney defend him in court. The reason is obvious given the enormous resources of the government, the tremendous skill of government attorneys and the complexities of a criminal trial, an accused would stand little chance if he were required to defend himself. The Supreme Court explained in Powell v. Alabama (1932),
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Finally, we should note that pursuant to the express language of the Sixth Amendment, all these procedural rights belong not only to Americans but also foreigners whom U.S. authorities charge with a crime. Is the Sixth Amendment relevant today? You bet it is, especially given the Pentagons use of military tribunals in another country, Cuba, for people accused of terrorism. Ever since their arrest, people accused of terrorism at Guantanamo Bay have been indefinitely detained and denied the right to counsel, due process of law, habeas corpus, trial by jury, and even the right to know exactly what they are being charged with. Most of the proceedings are as secret as they were in the Star Chamber and in Hitlers Peoples Court. Moreover, the federal government is doing everything it can to deny accused terrorist Zacharias Moussaoui the right to cross-examine adverse witnesses and to summon favorable witnesses in his behalf in his federal court prosecution. Make no mistake about it: If the feds treat foreigners accused of terrorism in this way, theyll do the same to Americans. Just ask Jose Padilla, an American whom the Pentagon has held in a military dungeon for almost three years and whom they have denied all the rights enumerated in the Sixth Amendment. Our ancestors bequeathed to us the finest criminal justice system in history, a system in which every American should take great pride. As the great criminal defense attorney Edward Bennett Williams put it, Civil liberties are a great heritage for Americans. They are not rights that the government gives to the people, they are the rights that the people carved out for themselves when they created the government. Jacob Hornberger is founder and president of The Future of Freedom Foundation. Send him email. This article originally appeared in the February2005 edition of Freedom Daily. If you enjoyed reading this article, you may want to consider subscribing.

http://www.fff.org/freedom/fd0502a.asp

Rights of the Accused

The founders of the United States, armed with hindsight from the colonial days and their experience in Britain, understood that individual rights cannot be protected and democracies cannot function unless those accused of crimes receive what we now call due process of law. The rights of the accused have been established in the Bill of Rights and have been continuously refined in courtrooms ever since. While some less democratic countries may also hold trials before criminal convictions, it doesnt mean much if the accused party has no rights during the trial. The founders of the United States sought to protect the civil rights of the accused to make the judicial process as fair and just as possible. The Constitution's Bill of Rights spells out a number of rights afforded to those charged with crimes. Innocent Until Proven Guilty The basis for these rights is the supposition that all individuals are innocent until proven guilty. The following rights stem from this supposition and are guaranteed to all those accused of a crime:
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For a defendant to be found guilty, the prosecution must prove beyond a reasonable doubt that the accused did in fact commit the crimes that he/she has been charged with. The accused are protected from self-incrimination. This protection preempts torture and other forms of coercion by rendering the confessions or incriminating testimony inadmissible in court. The accused have a right to remain silent until he/she has had the opportunity to confer with legal counsel. The accused has the right to adequate legal representation. In the event that he/she cannot afford to hire an attorney, the court must provide legal counsel at no charge. The accused has the right to know what the charges are and to confront witness testifying against him/her. The defendant also has the right to gather his/her own evidence and witnesses.

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Those charged with serious crimes must be indicted by a grand jury. An individual cannot be tried for the same crime twice. The defendant has the right to a public and speedy trial by jury if desired. The accused has the right to be free of unreasonable search and seizure. There are many circumstances where law enforcement must obtain a search warrant before searching private property for people or evidence. To ensure that this right is upheld, a judge must not allow any evidence gathered unlawfully to be admitted in court.

If you would like to learn more about the rights of the accused, please contact a qualified and experienced defense attorney in your area who can evaluate your case to determine how best to protect and maximize your legal rights and interests.
http://www.criminal-law-lawyer-source.com/legal/accused_rights.html

Rights Of The Accused

Rights of the accused: Miranda v. Arizona, Tennessee v. Garner

In 1985, the Supreme Court outlawed the indiscriminate use of deadly force with its decision in the case of Tennessee v. Garner. In this case, the court ruled that the use of deadly force against apparently unarmed and non dangerous fleeing felons is an illegal seizure of their person under the Fourth Amendment. Deadly force may not be used unless it is necessary to prevent escape and the officer has probable cause to believe the suspect poses a significant threat of death or serious injury to the officer or others(Tennessee v. Garner, 1985). The majority opinion stated that, when the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend the subject does not justify the use of deadly force to do so. A police officer may not seize an unarmed, non dangerous suspect by shooting him dead. As a result of the decision in the Tennessee v. Garner case, policies that restrict the police use of violence have been implemented by some states. Others have continued to upgrade training in the use of force. The Federal Law Enforcement Training Center(FLETC) has developed the FLETC use-of-force model to teach officers the proper method to utilize force in response to the threat they face. Through demonstrations, lectures, and training scenarios officers are taught to assess the behavior of the suspect and apply an appropriate amount of force(Graves, F. and G. Connor, p.59). Policy making by police administrative review boards as well as internal review are also ways in which to control police shootings. Graves, F. and G. Connor, The FLETC Use-of-Force Model, Police Chief 59(1992):56-58. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct.1694, 85 L.Ed.2d 889 (1985).

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