due process and other protected rights the rights of criminal defendants

Due Process and Other Protected Rights

The Rights of Criminal Defendants

© EMC Publishing, LLC

Protecting the Accused

•The Bill of Rights protects American citizens from the abuse of governmental power.

•It does this by providing checks on the ability of the U.S. government to prosecute its critics.

•If a person is accused of illegal activity, he or she is presumed innocent and entitled to due process.


Presumption of Innocence

•The presumption of innocence means that an accused person is presumed to be innocent until proven guilty.

•The burden of proving someone guilty is on the government.

•In a criminal case, the government must use evidence and witnesses to prove beyond a reasonable doubt that the accused is guilty.


Due Process

•Due process of law means that the accused must:▫Hear the charges and

evidence against him or her▫Have access to legal

counsel (a lawyer)▫Receive a fair trial

•Due process is a right of every American citizen.


Searches and Seizures

•Writs of assistance were orders allowing the British government to enter and search colonists’ homes.

•Colonists called those general searches “grievous and oppressive.”

•In the Bill of Rights, the founders included the Fourth Amendment, banning “unreasonable” searches.


Searches and Seizures

•Today, government agents (usually the police) must obtain a search warrant before entering a private home.

•Search warrants are orders from a judge specifying who and what is to be searched and what evidence is being sought.


Reasonable Searches• Police may conduct a search without a

warrant if they have probable cause.• Probable cause is a reasonable belief that a

crime has taken place.• Example: Police may

search an automobile if it is parked outside a bank where alarms are going off and someone is stuffing money bags into the trunk.


Drug Testing• Drug testing often involves taking a blood or

urine sample, which is usually considered an unreasonable search.

• The U.S. Supreme Court allows drug testing when the violation of privacy is outweighed by a legitimate governmental purpose.

• Examples: Mandatory drug testing is allowed for:▫Train conductors and airline pilots▫Public school students involved in

extracurricular sports


Obtaining Evidence• The exclusionary rule bans

evidence obtained illegally from being used to gain a conviction in a trial.

• The good faith exception says that even if certain evidence was obtained illegally, it may be used to gain a conviction if the police based their actions on a warrant or a law that they believed to be constitutional.


Testifying against Oneself• A confession is a voluntary statement admitting

that one has committed a crime.• The Fifth Amendment protects individuals against

self-incrimination. It says no person “shall be compelled in any criminal case to be a witness against himself.”

• The Miranda rights protect individuals against coerced, or forced, confessions. They say the police must inform suspects of their right to remain silent and to have a lawyer present during questioning.


Rights of the Accused•The Sixth Amendment guarantees three

rights of the accused:▫The right to a speedy and public trial, by an

impartial jury▫The right to defend himself or herself▫The right to counsel for his or her defense

•The Fifth Amendment protects against double jeopardy by saying that a person may not be put on trial twice for the same crime in the same government (federal or state).


The Eighth Amendment

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

(U.S. Constitution, Amendment VIII)•Bail: Money that an accused person must

pay the court if he or she wants to be out of prison while waiting for trial

•Preventive detention: Holding an accused person without bail out of concern that he or she will flee if released


Cruel and Unusual Punishment

•The courts have a difficult time defining “cruel” and “unusual.”

•Definitions vary from state to state.•Some states allow capital

punishment, and others do not. •Capital punishment: The death

penalty•Lethal injection and electrocution

are generally considered less cruel than hanging and shooting.

Due Process and Other Protected RightsControversial Rights


The Right to Bear Arms

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall

not be infringed.” (U.S. Constitution, Amendment II)

•The Second Amendment was written to guard against the tyranny of the British and the federal government.

•Today some say that the amendment is obsolete because these threats no longer exist.


Gun OwnershipI

▫ In colonial times, national security was handled by the militia (able-bodied men who volunteered for emergency military service using their own guns).

• Today, some people want gun control (limits on gun ownership) because:▫ The military supplies troops

with guns▫ Violence is a national security

concern• The National Rifle Association (NRA) challenges gun

control laws and supports the rights of gun owners.


Congress and Gun Control• In 1990, carrying a gun near a school became

illegal.• In 1993, the Brady Bill required people

to undergo a background check before purchasing a handgun.

• In 1994, the Crime Bill banned semiautomatic assault weapons.

• In 1997, parts of the Brady Bill were struck down.

• In 2004, Congress let the ban on semiautomatic weapons expire.


The Right to Privacy• The right to privacy is the right to be left

alone to do what we want.• The right to privacy appeared in American

legal thinking in 1890.• In 1965, a member of the Supreme Court

held that:▫The right to privacy is not explicit in the

Constitution▫A number of other constitutional rights contain

penumbras (outlying shadowy areas), in which a right to privacy exists


Privacy and Life Issues

•In Griswold v. Connecticut (1965), the U.S. Supreme Court determined that using birth control falls under a right-to-privacy penumbra.

•In Roe v. Wade (1973), the Court determined that having an abortion is also a privacy right.

•The Roe v. Wade decision created a battleground over abortion that still exists today.


Other Privacy Rights

•In 1990, the Supreme Court determined that people can protect their right to die by writing a living will.

• In 1997, the Supreme Court determined that:▫Patients had the right to refuse

treatment.▫Doctors did not have the right to help

patients end their lives.


Assisted Suicide• In 1997, the state of Oregon passed a law that

allowed doctors to provide lethal amounts of drugs to help terminally ill patients die.

• In 2001, Attorney General John Ashcroft said he would take away the medical license of any doctor who participates in assisted suicide.

• In 2005, the Supreme Court ruled that the attorney general had no right to interfere with medical practices handled under state law.


Medical Records• The 2003 Health Insurance Portability and

Accountability Act (HIPAA):▫Allows sharing of patient information for

medical, billing, and insurance matters▫Prohibits sharing of patient information for

marketing purposes or without the patient’s written consent

• The federal government is experimenting with an online database of health records.

• Critics worry that information from the database will be misused.


Personal Information on the Internet•The government has made it illegal for

Internet companies to reveal personal data.

•Internet companies are not regulated for privacy infringement as closely as are other media.

•The USA Patriot Act allows the government to access personal information on the Internet without a warrant.

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