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Criminal Law and the Constitution – 4th 5th 6th 8th Amendments

What protections does the 4th Amendment provide to individuals subject to criminal charges?

Protection of Individual Rights

The 4th Amendment protects individuals against “unreasonable search and seizure”. More specifically, the police must obtain a court order before searching the individual’s body or any physical location where the defendant has an expectation of privacy. To obtain a search order, the government must demonstrate to a judicial official (generally a magistrate judge) that there is probable cause to believe that the suspect or private location contains evidence of a crime. There are certain limitations to the requirement that the government secure a search warrant before searching private property. The most common exceptions include:

“Exigent circumstances” – This doctrine allows the government to proceed with a search of premises if there is a risk of harm to individuals or the destruction of evidence.

“Grab Area” – Officers may search any place that is in the immediate grab area of a suspect at the time of arrest. The grab area can be interpreted very broadly to include any place in the reach of a suspect at any point during the arrest.

“US Entry/Exit” – The Federal Government also allows for warrantless searches at the border for individuals entering the United States. As such, there is no expectation of privacy for vehicles entering and leaving the country.

Special rules apply to electronic forms of surveillance, such as audio and visual recordings. Electronic surveillance generally requires a search warrant if surveilling a space where an expectation of privacy exists.

Protection of Businesses

The expectation of privacy applies to businesses as well as individuals. That is, the government must obtain a search warrant prior to searching business premises. This extends to administrative and civil enforcement actions as well. The more heavily regulated the business industry, the less it is afforded privacy protections against search. Many businesses have no expectation of privacy when the business is heavily regulated or closely connected to receipt of government funds for operation.

Example: If the owner objects, a building inspector may need a warrant to inspect whether a building meets code. A public university, government funded research laboratory, or public utility may have limited rights to privacy.

Exclusion of Unlawfully Obtained Evidence

The 4th Amendment protection against warrantless searches is enforced through criminal procedural law. If the government violates an individual’s 4th Amendment rights by conducting an unlawful search and seizure, the evidence uncovered in the search is not admissible at trial against the accused. This is known as the “exclusionary rule”. This rule exists to prevent the government, which has an interest in using seized evidence for prosecution of criminal law offenders, from infringing upon a defendant’s constitutional rights in pursuit of criminal law enforcement. There are exceptions to the exclusionary rule for unlawful searches. For example, if the government relied in good faith on a search warrant from the court that was later deemed invalid, the evidence uncovered in the search may still be used in a prosecution. This is known as the “good faith exception”. Further, if evidence is uncovered in an unlawful search that would have been inevitably discovered without the unlawful search, it may be used in a prosecution. This is known as the “inevitable discovery exception”.

Note: If the government searches beyond the authorization of the search warrant, any evidence uncovered in the search may be excluded.

Discussion: Do you think the 4th Amendment protects individual rights or is a hindrance on maintaining law and order? Why do you think that there is less 4th Amendment protection for businesses than individuals? Is the exclusionary rule sufficient repercussion to dissuade conduct by officials that violates an individual’s 4th Amendment rights?

Practice Question: Perry is suspected of dealing illegal narcotics from his home. A private informant testifies to a magistrate that he witnessed Perry selling drugs from his home. The magistrate issues a search warrant for the home, but does not include the automobile on the premises. The police raid and search Perry’s home but do not find any narcotics. One of the officers finds the keys to Perry’s car and searches the trunk. Below the spare tire is a large amount of illegal narcotics. Perry is charged with possession of the narcotics with intent to distribute. At trial, what defense will Perry likely raise to introduction of the drugs as evidence?

What protections does the 5th Amendment provide to individuals subject to criminal charges?

The 5th Amendment provides several procedural, due process rights to citizens. In additional to the right to due process of law, the 5th Amendment includes the following notable protections.

  • Right to Grand Jury – The 5th Amendment provides that anyone tried of a capital or infamous crime must receive a presentment or indictment by a grand jury.
  • Protection Against Self-incrimination – The 5th Amendment protects against compulsory self incrimination. It protects the accused from being compelled to testify against herself. It does not protect against being compelled to produce evidence. For example, a business executive can be made to produce documents. It only protects testimony that is related to an assertion of fact or the disclosure of information. The protection against compulsory self-incrimination does not apply to business entities. The only entity (quasi-entity) protected is the sole proprietorship, because the entity and individual are one in the same.
  • Protection Against Double jeopardy – No “person shall be subject for the same offense to be twice put in jeopardy of life or limb.” If an illegal activity violates both federal and state laws, double jeopardy does not prohibit two trials, one in federal court and the other in the state court system.

Procedural due process rights apply to civil, administrative, and criminal proceedings. The basic premise is that individuals enjoy 5th Amendment protections from government infringement of their rights (including rights to property).

  • Discussion: Why do you think the 5th Amendment includes a right to a grand jury? Do you think that an individual accused of a crime should have to testify? Do you think that this protection should apply to the criminal investigation stage as well as during formal trial? How do you feel about the fact that the 5th Amendment does not prohibit the Federal Government and a state government from prosecuting an individual for committing a single crime?
  • Practice Question: Donna is charged with participating in a bank robbery orchestrated by Alice. Eric, the prosecutor, decides to pursue separate trials against Donna and Alice. Eric wants to call Alice as a witness to testify against Donna and vice versa. Can Donna be compelled to testify in trial against Alice?

What protections does the 6th Amendment provide to individuals subject to criminal charges?

The 6th Amendment provides numerous procedural protections for someone who is subject to the prosecutorial process. These protections include:

Speedy and Public Trial – An individual, upon being charged with a crime, may request an expedited trial before a jury of her peers. This right prevents unduly long detention without proceeding with prosecution.

Trial by Jury – The 6th and 7th Amendments to the US Constitution allow for trial by jury. This right does not extend to administrative hearings, certain Article I hearings, juvenile proceedings, and certain misdemeanor cases.

Informed of Charges – The 6th Amendment ensures that individuals will be fully informed of the nature and extent of charges brought against them. If the Government fails to give notice of charges arising out of the same allegedly criminal conduct, the right to later bring those charges may be forfeited.

Confront One’s Accuser – Anyone accused of a crime has a right to confront (and cross-exam in court) anyone accusing her of the charged criminal activity.

Right of Subpoena – The court provides any defendant with the opportunity to subpoena witnesses to give testimony or evidence at trial if those witnesses or evidence are relevant to the charged criminal conduct.

Right to Counsel – Defendants have the right to be represented by a licensed attorney in any case that has the possibility of imprisonment. If an individual cannot afford an attorney, the government will provide the defendant with a free public attorney.

The rights afforded under the 6th Amendment have been interpreted broadly to ensure adequate protection of a criminal defendant’s rights.

Discussion: Do you believe that all of the above protections are warranted for individuals accused of crimes? Why is it important to allow a defendant the option of electing to have a speedy trial? Is there any justification for denying the right to jury trial in certain administrative and juvenile cases? How does the right to be informed of charges against a defendant have the effect of protecting against multiple prosecutions for a single course of conduct? Do you believe that a defendant should always have the right to confront her accuser (such as in rape or molestation cases)? How broad should the right of subpoena be and should it balance the rights of those subpoenaed against those of the defendant? Is it, and if so, why is it important to afford a defendant the right to legal counsel throughout the prosecution process (beginning at the point of arrest)?

Practice Question: Bernard was arrested on charges of conspiracy to commit murder. His accomplice, Abby, was also arrested but skipped bail and left the country. Without Abby, the prosecution will have a difficult time proving conspiracy against Bernard. The prosecution seeks to delay Bernard’s trial until international police are able to locate and detain Alice. What 6th Amendment rights can Bernard assert to aid in his defense?

What protections does the 8th Amendment provide to individuals subject to criminal charges?

The 8th Amendment prohibits the Federal Government from imposing “excessive bail, excessive fines, and cruel and unusual punishment” on individuals pursuant to criminal prosecution. These protections have been extended to state governments as well. The prohibition against cruel and unusual punishment has been the subject to extensive interpretation over the years. This has particularly been the case with regard to capital punishment. Generally, the standard for what constitutes cruel and unusual punishment has become increasingly broad.

Discussion: Why to you think the trend toward what constitutes cruel and unusual punishment is toward greater protection of defendants? What do you think is the justification behind prohibiting excessive bail for defendants? What about excessive fines?

Practice Question: Nancy is convicted of check fraud. The judge sentences Nancy to 100 hours of hard labor to be carried out during the hottest hours of the day. Are there any arguments against the constitutionality of this sentence?

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