1. Rights of the Accused The 5 th, 6 th & 8 th Amendments

2. Your Right to Rights Availing yourself of your rights is OPTIONAL…you do not have to use them just because you have them Availing yourself of your rights is OPTIONAL…you do not have to use them just because you have them To formally give up your rights is called WAIVING your rights To formally give up your rights is called WAIVING your rights

3. Writ of Habeas Corpus Latin for “present the body” Latin for “present the body” Intended to prevent unjust arrest and/or imprisonment Intended to prevent unjust arrest and/or imprisonment Prisoners can request “habeas hearings,” where officer must explain to judge why prisoner should not be released Prisoners can request “habeas hearings,” where officer must explain to judge why prisoner should not be released Often last step in capital appeals process Often last step in capital appeals process Can be suspended when required by public safety (rebellion or invasion) Can be suspended when required by public safety (rebellion or invasion)

4. No Bills of Attainders Bill of attainder: Punishment without trial or accusation of specific crime Bill of attainder: Punishment without trial or accusation of specific crime Possible example: seizure of Nixon’s White House papers by act of Congress Possible example: seizure of Nixon’s White House papers by act of Congress

5. No Ex Post Facto Laws Ex Post Facto Laws: Laws passed after the fact that work to the disadvantage of the accused Ex Post Facto Laws: Laws passed after the fact that work to the disadvantage of the accused What that means: Criminal laws cannot punish actions that were taken before they became illegal (cannot be retroactive) What that means: Criminal laws cannot punish actions that were taken before they became illegal (cannot be retroactive) Does not apply to civil laws Does not apply to civil laws

6. Treason Convictions Require… Testimony of two independent witnesses Testimony of two independent witnesses OR Confession in open court OR Confession in open court Treason is the only crime defined in Constitution (because often unfairly applied) Treason is the only crime defined in Constitution (because often unfairly applied) Levying war against the U.S. Levying war against the U.S. Adhering (giving aid and comfort) to enemies of the U.S. Adhering (giving aid and comfort) to enemies of the U.S.

7. Indictment by Grand Jury Formal complaint presented to jurors that results in an official order that there is enough evidence for a trial – idea that it makes frivolous cases less likely Formal complaint presented to jurors that results in an official order that there is enough evidence for a trial – idea that it makes frivolous cases less likely “A grand jury would indict a ham sandwich” – criticism that has become merely a tool of prosecutors “A grand jury would indict a ham sandwich” – criticism that has become merely a tool of prosecutors In state court, can be waived if a preliminary hearing is held (This clause of the 5 th Amendment has not been nationalized) In state court, can be waived if a preliminary hearing is held (This clause of the 5 th Amendment has not been nationalized)

8. No Double Jeopardy Cannot be tried twice for the same crime IF Cannot be tried twice for the same crime IF The jury reaches a verdict in the original trial The jury reaches a verdict in the original trial Appeals are exempted Appeals are exempted Can be tried again in another court (if federal AND state crime or criminal AND civil offense is accused) Can be tried again in another court (if federal AND state crime or criminal AND civil offense is accused)

9. Free from Self- Incrimination a.k.a. the right to remain silent – results from the concept that you should not be forced to be a witness against yourself a.k.a. the right to remain silent – results from the concept that you should not be forced to be a witness against yourself Associated with concept that accused is innocent until PROVEN guilty Associated with concept that accused is innocent until PROVEN guilty Accused cannot be forced to confess under duress (psychological or physical pressure); forced questioning prohibited Accused cannot be forced to confess under duress (psychological or physical pressure); forced questioning prohibited

10. Free from Self- Incrimination Can only be invoked if a crime is involved – cannot be used to protect against embarrassment Can only be invoked if a crime is involved – cannot be used to protect against embarrassment Cannot be invoked if prosecutors grant immunity Cannot be invoked if prosecutors grant immunity Miranda Rule: Accused persons must be read their rights (Miranda v. Arizona 1966) Miranda Rule: Accused persons must be read their rights (Miranda v. Arizona 1966)

11. Speedy & Public Trial Both rights can be limited (i.e. no press in courtroom), but intended to prevent unreasonable delays and/or abuse of judicial power (“sunlight is the best disinfectant”) Both rights can be limited (i.e. no press in courtroom), but intended to prevent unreasonable delays and/or abuse of judicial power (“sunlight is the best disinfectant”) In CA: misdemeanor trials begin in 30 days if the accused is in custody; 45 days if not In CA: misdemeanor trials begin in 30 days if the accused is in custody; 45 days if not Felony trials begin in 10 days Felony trials begin in 10 days Defendants in criminal cases often waive their speedy trial rights; once they announce ready, trial begins within 10 days Defendants in criminal cases often waive their speedy trial rights; once they announce ready, trial begins within 10 days

12. Trial by Impartial Jury Guaranteed in criminal cases by 6 th Amendment Guaranteed in criminal cases by 6 th Amendment Guaranteed in civil cases worth more than $20 by 7 th Amendment Guaranteed in civil cases worth more than $20 by 7 th Amendment Most cases are disposed of by plea bargaining – guilty plea entered in advance of trial in exchange for favorable sentence (saves time & money for state) Most cases are disposed of by plea bargaining – guilty plea entered in advance of trial in exchange for favorable sentence (saves time & money for state)

13. Trial by Impartial Jury Does NOT mean “a jury of your peers;” rather, you are entitled to a jury of ordinary citizens who will be impartial Does NOT mean “a jury of your peers;” rather, you are entitled to a jury of ordinary citizens who will be impartial “a fair cross-section of the community” of the state & district where crime occurred “a fair cross-section of the community” of the state & district where crime occurred Can request a change of venue if an impartial jury cannot be found in the county Can request a change of venue if an impartial jury cannot be found in the county Can be waived in favor of a bench/court trial, where the judge determines the verdict Can be waived in favor of a bench/court trial, where the judge determines the verdict

14. Hear the Charges Against You “informed of the nature and cause of the accusation” “informed of the nature and cause of the accusation”

15. Confront Witnesses Against You Defendants may cross-examine all prosecution witnesses in open court to try and elicit bias or reasons why they might be mistaken (Pointer v. Texas 1965) Defendants may cross-examine all prosecution witnesses in open court to try and elicit bias or reasons why they might be mistaken (Pointer v. Texas 1965) The gorilla in the room – brains see what they want/expect to see The gorilla in the room – brains see what they want/expect to see Difficulty of cross-racial identification Difficulty of cross-racial identification

16. Summon Witnesses In Your Favor Defendants have the right to affirmatively demonstrate their innocence or disprove the prosecution case by offering witnesses on their behalf (Washington v. Texas 1967) Defendants have the right to affirmatively demonstrate their innocence or disprove the prosecution case by offering witnesses on their behalf (Washington v. Texas 1967) Witnesses not wishing to testify can be compelled to do so through a court-issued subpoena (an order to appear) Witnesses not wishing to testify can be compelled to do so through a court-issued subpoena (an order to appear)

17. Assistance of Counsel From the time individuals become suspects, they must be provided with an attorney as soon as they request one… From the time individuals become suspects, they must be provided with an attorney as soon as they request one… in state criminal trials (Gideon v. Wainwright 1963) in state criminal trials (Gideon v. Wainwright 1963) in federal criminal trials (Johnson v. Zerbst) in federal criminal trials (Johnson v. Zerbst) and during questioning (Escobedo v. Illinois 1964) and during questioning (Escobedo v. Illinois 1964) Individuals who cannot afford counsel receive a court-appointed attorney from either the public defender’s office, the alternate public defender, or the bar panel Individuals who cannot afford counsel receive a court-appointed attorney from either the public defender’s office, the alternate public defender, or the bar panel

18. No Excessive Bail or Fines Defendants are not necessarily entitled to bail, but if so, amount cannot be prohibitive; only enough to ensure defendant’s appearance at trial – must be related to gravity of offense, likeliness of “jumping bail” Defendants are not necessarily entitled to bail, but if so, amount cannot be prohibitive; only enough to ensure defendant’s appearance at trial – must be related to gravity of offense, likeliness of “jumping bail” Preventive detention: bail can be denied if the court has good reason to believe another crime (i.e. flight to evade prosecution) will be committed before the trial begins Preventive detention: bail can be denied if the court has good reason to believe another crime (i.e. flight to evade prosecution) will be committed before the trial begins

19. No Cruel or Unusual Punishment Has not been strictly defined; the Supreme Court usually rejects appeals on these grounds (except in some capital cases) if punishment is proportionate to the crime Has not been strictly defined; the Supreme Court usually rejects appeals on these grounds (except in some capital cases) if punishment is proportionate to the crime Capital punishment is not automatically cruel & unusual (Gregg v. Georgia; Furman v. Georgia), but can be APPLIED in an unconstitutional manner (if juries & judges have too much discretion to implement) Capital punishment is not automatically cruel & unusual (Gregg v. Georgia; Furman v. Georgia), but can be APPLIED in an unconstitutional manner (if juries & judges have too much discretion to implement)

20. No Cruel or Unusual Punishment Atkins v. Virginia 2002: Death penalty for mentally retarded struck down Atkins v. Virginia 2002: Death penalty for mentally retarded struck down Roper v. Simmons 2005: Death penalty for juvenile offenders struck down Roper v. Simmons 2005: Death penalty for juvenile offenders struck down “Three strikes” law upheld in Ewing v. CA 2003 – man received third strike (and 25 to life in prison) as punishment for stealing golf clubs “Three strikes” law upheld in Ewing v. CA 2003 – man received third strike (and 25 to life in prison) as punishment for stealing golf clubs