Constitutional Rights, Research Paper Example

Introduction

Our founding fathers shaped our inalienable rights through the Declaration of Independence which laid the groundwork for the United States Constitution to be formally proscribed. There are certain rights that are laid down particularly in the Bill of Rights which give citizens the right to freedom, speech, autonomy, liberty, amongst other rights if accused of a crime. Some rights are present before arrests, some are present after arrest and some deal with the right to a fair and speedy trial. Each will be discussed in detail and how all three collaborate to the basic framework of our Constitution. Further, I will discuss the discretionary powers of the police and the judiciary and hope to give insight on how these powers can be addressed to make a stronger Constitution for our Democracy. I will elaborate on rights before arrest so a person knows when an infringement of his civil rights has been breached. Then I will touch on rights after arrests and rights to trial by jury.

Constitutional Rights before Arrest

There are certain unalienable rights that all citizens of the United States are afforded by way of the United States Constitution before arrest. Some of them are: the right against unreasonable search and seizure as dictated in the Fourth Amendment, the mandate of law enforcement to have certain proof before issuing a search warrant, the right to evade probable cause if none is there, the right to remain silent, the exclusionary rule, the right of double jeopardy, ex post facto laws and bills of attainder, and the right to bail.

Durkheim’s Consensus Theory states crimes are crimes because the society dictates they are so. Marx’s Ruling Class Theory states the laws are the consequences of the interests of the ruling class of society as a whole. Blackstone’s Theory suggests crime is depicted into two categories of which (1) a behavior is inherently bad or evil or (2) someone in society dictates the behavior or act is a crime. Criminal acts against the law are simply a combination of society’s traditional thoughts. The criminal law system is designed to protect the rights of the accused. It is different from civil law which is designed to resolve private non-criminal disputes.

In the criminal law system, the government is always the ones who have to ‘show burden of proof’ that the Defendant committed the crime ‘beyond a reasonable doubt’. What this means is if a person is suspected of murder and the ‘actus reus’ and ‘mens rea’ is not satisfied then the jury must find the Defendant ‘not guilty’. Even if one juror is uncertain of whether the Defendant did actually commit the crime, the jury must rule ‘not guilty’ because a burden beyond a reasonable doubt has not been reached. The burden of proof for criminal conviction is much higher than in civil cases because we are dealing with people’s lives and possible jail or prison sentences. A person is considered ‘innocent until proven guilty beyond a reasonable doubt.’

As guaranteed through the spirit of our independence that the colonials fought for many years ago, our Constitution guarantees ‘no form of government can conduct unreasonable search and seizures except with probable cause’. If it be deemed there was no probable cause, no matter how damaging the evidence obtained through the search, it will be ruled inadmissible in a court of law. See: Entick v Carrington (1765) where civil liberties for the persons were established by limiting the powers of the executive. This case was a motivation to the establishment of the Fourth Amendment. The Kings crooneys were acting upon orders of Lord Halifax who had no power to order such a search and seizure of Entick’s papers; hence the search was conducted illegal. This English case law is the basis for civil rights and the establishment of the protection of rights to search and seizure. The government further prohibits any individual from being tried twice for any crime they have been acquitted from. This is called ‘double jeopardy’. The government is prohibited from making no ‘ex post facto laws’ or can they pass ‘bills of attainder’. Ex post facto laws prevent government from criminalizing a non-criminal act or making the consequences of a crime more severe. Further the rules of evidence may be altered in illegality to ex post facto laws.  These two provisions of the law are in force to ensure no citizen is harassed by the government through the use of the criminal procedure and to further ensure the laws are enforce with uniformity and fairness to all. An example of this would be ‘false imprisonment’ by the police powers. The government cannot use torture to extract information from a person nor can they Ex post facto laws are actually a violation of the Rule of Law by A.V. Dicey.  Article I, Section 9 of the U.S. Constitution strictly prohibits the government from passing and participating in ex post facto laws. Clause 1 of Section 10 expressly prohibits all states from participating in such actions afforded the ex post facto law. See: Calder v Bull (1798) which distinguished Connecticut law was within its legal realm to examine the authority of state legislation regarding a will. The ex post facto provision applies to criminal cases and not civil cases. A bill of attainder or writ of attainder is the government taking action against a person or persons without affording them the right to a trial. This writ was historically founded in England when the King would often take possessions from people and punish them without the use of a trial. The first use of attainder was used against Earl of Winchester and Earl of Gloucester in 1321. In United States v Brown (1965) the courts did not honor the statute of the writ of attainder stating the communist party might engage in communist activity. This decision should have been left up to the judicial to decide if ‘a particular person’ accused would be likely to engage in such activity.

Persons that are arrested have the right to counsel as afforded the Sixth Amendment and the right to reasonable bail. William Blackstone wrote, “It is better that ten guilty people escape than one innocent person suffers.” In Powell v Alabama (1932) it was distinguished by Justice Sutherland that the necessity to have counsel of law aid in a defense is ‘necessary’ because the average person does not have the skill of law and does not know about the rules of evidence. The accused may be convicted with incompetent evidence. He requires the skill of an attorney every step of the legal process for a fair and just trial. See: Gideon v Wainwright (1963) where the court found that right to counsel is ‘fundamental’ to a fair and just trial. Only if a person waives his right to counsel can he be duly convicted without the assistance of counselor at law.

Under the Fourth Amendment a person has the right to be secure in their home, with their persons and papers. A search is unreasonable if it ‘duly affects a person’s expectations of privacy’. People have a natural expectation of privacy in their home but not in public. There is a reduced expectation of privacy when it comes to searching a person’s automobile. In Carroll v Illinois the officer had ‘probable cause’ to make a search, however he failed to obtain a warrant. The court ruled in favor of the search as being legal. If a police officer believes he has ‘exigent’ or emergency circumstances that would ‘destroy the obtainable’ evidence he does not have to get a warrant. He must feel that obtaining a warrant will cause extreme harm or death such as in a ‘hot pursuit car chase’. Probable cause means a police officer must present evidence to a judge that it is ‘more likely than not likely’ that a crime has been committed. Another avenue is that the police have to show the judge that the place to be searched is in connection with the crime. The courts use ‘the totality of the circumstances test’ in order to decide if a warrant should be issued. The warrant must state the place to be searched and the exact items the police are searching for. They cannot simply make a blind search hoping to find some incriminating evidence. The police must announce themselves by knocking on the door and announcing themselves as the police before entering the premises.

The Exclusionary Rule is designed to have any evidence that is obtained in violation of the Fourth Amendment to be ruled inadmissible in a court of law.

With respect to the Double Jeopardy Rule, there are some finely defined exceptions:

• If a jury is deadlocked there is a right to retry the Defendant.
• If the appellate court finds an ‘error in the law’ the Defendant can be retried.
• Right to try a Defendant in federal court and vice versa if they have been acquitted on the latter charges.
• Right to ask for the death penalty if the original sentence was life in prison if the conviction was appealed and a new trial was granted.
• Only the Defendant can appeal a reversal at the Appellate level; the government cannot.
• Normally the Appellate Court offers the remedy of a new trial to the Defendant.
• If the Defendant violates the laws of two or more jurisdictions simultaneously with the same act he can be retried.

An example to retrial is when the officers who beat Rodney King were convicted; they were later tried at the federal courts for violating Mr. King’s civil rights.

Under the Fifth Amendment no person has to incriminate himself. He can remain silent. Defendants may be compelled to provide physical evidence and further there may be a compelled testimony granted by immunity.

Bail must not be set unreasonable and excessive. In cases where the judge feels the Defendant is at risk to flee, the judge may deny bail altogether.

Another situation to consider with respect to rights before arrest including Constitution Rights are can treaty rights override individual rights protected under the U.S. Constitution? In Reid v. Covert it was determined that no agreement with a foreign government can confer powers to Congress. No form of government is free from restraint of the Constitution. The Constitution has Supreme Powers. (Spiro, 2003).

Constitutional Rights after Arrest

Through the power of the state, the police are regarded to regulate the health, safety, morals and general health of the public. However, the police have discretionary power to act in certain situations and are mandated by law to fulfill certain requirements to exercise their powers. If the police feel they have enough evidence to make an arrest they can issue an arrest warrant, however at a preliminary hearing the accused person’s attorney can take a look at the evidence to decide if the case will go to trial. The state only has to meet the standard of ‘probable cause’ at the initial preliminary hearings. The state’s attorney has to be convinced there is enough evidence to move forward with a conviction. If the case makes it to court, the defendant may option for trial before a judge or before a jury. If the defendant chooses trial before a jury he has the option to help with the selection of the jurors. There will be a ‘voir dire’ session of questioning potential jurors.

Any person accused of a crime has the right to post bail if bail is set, has the right to an attorney through the Sixth Amendment or a court appointed attorney if they cannot afford a private attorney, and they have the inalienable right to remain silent during the arrest and afterwards as afforded through the Fifth Amendment. As per the Miranda case, the police have a mandated obligation to inform Defendants of their rights at the time of their arrest. After a Defendant has ‘invoked’ his right to an attorney any confessions made are ‘ruled inadmissible’. However, the U.S. Supreme court upheld a decision by 5-4 stating, ‘any physical evidence obtained during an illegal confession’ will be ruled admissible. The right to remain silent is used to prevent ‘self-incrimination’ hence an officer of the law cannot invoke or coerce a Defendant to speak against himself. There is transient immunity for those who testify against the Defendant. The attorney/client privilege must be strictly adhered to. A spouse cannot be forced to testify against her mate unless he/she voluntarily wishes to do so. The right against self-incrimination has no basis with regards to physical evidence against a Defendant. He/She must produce physical evidence to the courts.

The Sixth Amendment guarantees the accused the right to a fair and impartial speedy trial before the law. As a result state and federal law guidelines have been set to stipulate the maximum time a person can be jailed before being brought to trial. The Speedy Trial Act of 1974 set specific time limits of when a defendant must be brought to federal trial. If a person is not brought to trial within those specific limitations they can move for Summary Judgment to have their charges dismissed.

Rudovsky stresses the possibilities of police immunity infringing upon the Constitutional rights of Americans after arrest (1989). The burden of proof is not whether the federal government acted with malice but rather if the federal employee acted how a reasonable person in that position would have. As seen in Harlow v Fitzgerald (1982) this grants immunity to government officials as long as they do not violate a statute of constitutional nature that a reasonable government official would have done. There was an attempt to make the standards more stringent in 2001 but that was struck down.

Constitutional Rights to a Trial by Jury

The use of trial by jury is traced back as far as in Greek courts and Henry II’s Constitution’s of Clarendon in 1164 and the Magna Carta in 1215. Before the use of trial by jury the use of ‘trial by ordeal’ was used until someone was out of physical energy, hence commenced the winner. The law states, “Every criminal who is sentenced to jail for a period of six months or more has a right to trial by jury.” See: Duncan v Louisiana (1968) where it was distinguished all criminal acts under the Sixth Amendment are guaranteed a ‘trial by jury’ regardless that the punishment was less than six month imprisonment. This right applied to states as well as the federal government. The jury is a cross selection of all jurors picked from the community pool. A ‘voir dire’ session or chance to ‘speak the truth’ is held during jury selection. The attorney has the right to ‘challenge for cause’ if he believes one of the potential jurors will not be able to be impartial during the trial. A ‘peremptory challenge’ by an attorney is the act of striking a potential juror for ‘no reason at all’. The lawyer need not state his reason for dismissing the potential juror. Both attorneys’ must agree on an ‘accepted juror’. When dealing with a death penalty case the jurors will be asked if they can follow the law and vote for the death penalty if all elements of the crime have been proven. See: Witherspoon v Illinois (1968) where it was determined that the jurors were biased towards the ‘death penalty’ The jury was impartial and this was considered unconstitutional against the Sixth Amendment and further violated the Fourteenth Amendment which grants the right to an impartial jury. The questions to be addressed during jury selection for a capital murder case are as such: “Does a state statue that provides grounds for the dismissal of any juror with “conscientious scruples” against capital punishment violate the Sixth Amendment’s guarantee of an “impartial jury” and the 14th Amendment’s guarantee of due process?” The answer to these questions is yes. This is called the Witherspoon Test or whether the juror is Witherspoon ‘qualified’. (“U.S. Supreme Court Media-Oyez”).

The accused has the right to motion through his attorney for a Change of Venue if he feels the opinion of his guilt or innocence has been stipend by the media, there are impartial jurors on the panel or the jurors have not considered ONLY the evidence PRESENTED AT TRIAL. Nine of twelve jurors must agree upon a conviction or acquittal Juries of six or less must reach a unanimous decision to convict. Research shows the fewer jurors present on a trial, the higher the chance an accused has of being convicted. The judge has a role of ‘interpreting the law’ and the jury is in charge of ‘finding the facts’ as presented in the courtroom during trial only. Any other interpretation can lead to a ‘mistrial’ and no conviction. The jurors are vehemently admonished from making interpretations from others outside the jury pool. In many criminal cases the jurors are ‘sequestered’ so they are not privy to any further information, however there is no way to dwell into the mind of a tainted juror unless it is discovered by the attorneys’ during ‘voir dire’ or jury selection. “In all civil trials a person has a right to a jury of twelve.” (Arnold, 1993).

Conclusion

As always the best precaution to criminal charges is to not be accused, but let’s look at life realistically. Sometimes in life one may be accused of a minor infraction such as a speeding ticket even up to aggravated assault. In this wonderful country we are supposed to be presumed ‘innocent until proven guilty’ by a court of law. It does not always work that way, though it seems because of the perilous process the accused have to endeavor by the district attorneys’, police powers and others in the community. If you ever find yourself accused of a crime, especially a felony, know your rights and use them wisely. The U.S. Constitution has afforded all citizens the right to legal representation, including the right to free court transcripts if they cannot afford them on appeal. A private attorney will always fight most diligently for you but sometimes we are not in the position to hire an expensive attorney. The law states that the prisons must provide either legal counsel or access to law libraries for defendants, but not both. It is best to familiarize yourself with your inalienable rights granted by the Constitution so you have a head start in case you ever find yourself in a compromising position.

References

Calder v Bull [1798] 3 U.S. 386

Entick v Carrington [1765] EWHC KB J98

United States v Brown [1965] No. 339 334 F. 2d 488

Powell v Alabama [1932] 287 U.S. 45

Carroll v Illinois

Gideon v Wainwright [1963] 372 U.S. 335

Davenport, A. Constitutional Rights New York: Pearson Education, 2010

Miranda v Arizona [1966] 384 U.S. 436 Certiorari to the Supreme Court

The Speedy Trial Act 1974

Find Law for Legal Professionals Retrieved April 22, 2010 from, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=384&invol=436

Witherspoon v Illinois (1968) 391 U.S. 510

U.S. Supreme Court Media-Oyez Retrieved April 22, 2010 from, http://www.oyez.org/cases/1960-1969/1967/1967_1015

Rule of Law by A.V. Dicey

Spiro, P. (2003) Treaties, International Law and Constitutional Rights Stanford Law Review, Volume 55, 2003

Rudovsky, D. (1989) The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights Retrieved April 8, 2010 from, http://www.jstor.org/pss/3312179

Harlow v Fitzgerald (1982)

Arnold, R. (1993) Trial by Jury: The Constitutional Right to A Jury of Twelve in Civil Trials Retrieved April 8, 2010 from, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hoflr22&div=8&id=&page=