Constitutional and Procedural Protections
The framers of the U.S. Constitution valued the rights of the individual over the rights of government. To protect the individual from the abuse of the power of government, particularly with respect to the government's powers of prosecuting crime, the Constitution contains several provisions that protect the individual.
These protections, found in the Bill of Rights, prevent the government from being overzealous in pursuing the punishment of criminals. The protections of the Bill of Rights fall into three categories: protections against improper collection of evidence of a crime; protections against denial of individual rights in the trial of a criminal charge, and protection of individual rights after trial is complete.
Protections Against Improper Collection of Evidence of a Crime
Every individual suspected of committing a crime is entitled to certain protection from government activity in collecting evidence of the crime. First, individuals are protected against unreasonable searches and seizures by the Fourth Amendment. This provision requires the government to make a showing of probable cause before searching the property of or arresting the defendant.
The Fourth Amendment prevents law enforcement from “fishing” for evidence based on mere suspicion. A warrant to search the defendant's property must be based on reasonable information that suggests the defendant committed a crime. The information must establish a probability that the warrant is justified.
Individuals also receive protections from the Sixth Amendment, which guarantees the right to counsel at various stages of a criminal proceeding. It is the Sixth Amendment that requires law enforcement to give a Miranda warning to every person taken into custody.
Miranda rights include the right to remain silent and the right to counsel. Although its scope has been challenged over the years, the basic contours of the warning remain. Of course, Miranda has limitations — persons not in police custody do not receive the warning and the ruling does not protect persons who do not clearly state the desire to consult with an attorney.
Constitutional protections for criminals are sometimes referred to as “technicalities.” It is true that the protections of the Constitution can shield the guilty from prosecution, but the same technicalities allow ordinary citizens to be free from unwarranted government intrusion into their affairs. Constitutional technicalities ensure that all crimes are prosecuted for the right reasons and in the right way.
If law enforcement violates the provisions of the Fourth or Sixth Amendments, the evidence they gather is tainted. Evidence obtained in violation of the individual's constitutional rights will be excluded at trial. In addition, any additional evidence that is found as a result of an unconstitutional action by law enforcement, will be excluded as well. This exclusionary rule is a deterrent to misconduct in the investigation of crimes.
Protections Against Denial of Individual Rights in the Trial
The Bill of Rights provides several protections of the rights of individual who are tried on criminal charges. These protections include:
The Fifth Amendment privilege against self-incrimination.
The Sixth Amendment guarantees the individual the right to be represented by counsel at trial.
The Sixth Amendment guarantees the individual the right to a trial by a jury of his peers.
The Sixth Amendment guarantees the individual the right to confront the witnesses against him and to cross-examine those witnesses to test the believability of their evidence.
The Sixth Amendment guarantees the individual the right to a speedy trial, thereby preventing the government from holding an individual without trial for an extended period.
Protection of Individual Rights After Trial Is Complete
The U.S. Constitution also protects the individual after the trial is complete. The Fifth Amendment guarantees the individual the right to be free of double jeopardy. This is the right to not be tried twice for the same crime. Double jeopardy does not apply to mistrials or retrials after a conviction is overturned on appeal. When the defendant is found not guilty, however, the government may not retry the defendant on the same charge.
If the defendant is convicted, the Eighth Amendment prevents the government from imposing “cruel and unusual punishment.” The parameters of what is “cruel and unusual” can vary. In the 1970s, the Supreme Court felt that capital punishment violated the Eighth Amendment. More recently, the Court used the Eighth Amendment to disallow the execution of minors. Eighth-Amendment violations often figure prominently in lawsuits over prisoners' rights.