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This is a research paper on Constitutional Law.
The United States Constitution

The U.S. Constitution is the foundation for all laws in the United States, and all aspects of the criminal justice system are guided by the assurances granted in the Constitution. Many of the rights guaranteed in the Bill of Rights relate to the criminal law process. These amendments to the Constitution are in place to protect the human rights of the accused and to protect the innocent. The rights of the accused are protected before arrest, during the trial process, and after conviction because of the rights granted by the Constitution. 

When an individual is suspected of committing a crime, an investigation is conducted to determine whether or not a crime was committed. An investigation can be as simple as performing a search or as complicated as conducting a month long surveillance. No matter what the investigation entails there are guidelines set forth by the Constitution to protect the rights of the suspect. The first of these guidelines is outlined by the 4th Amendment protection against unlawful search and seizure. This Amendment aims to protect security and privacy by banning search and seizure of personal property without cause.

The 4th Amendment to the Constitution assures that people are protected from illegal search and seizure. It also assures that no warrants shall be issued without probable cause and those warrants must be legal and specific in what is to be searched and seized (Davenport, 2009).  In order for a search to be legal it must be supported by a legal warrant, reasonable suspicion, or plain view. A warrant must be issued and signed by a judge and supported by probable cause to be legal. This is the most easily justifiable search, but a search may also be legal if police officers have reasonable suspicion. Reasonable suspicion is more than a mere hunch; it is the belief that an individual is or is about to be engaged in illegal activity based on actual fact and inferences. A search may be conducted legally when reasonable suspicion has been established. A legal search and seizure may also be conducted if illegal items are in plain view. Plain view allows officers to seize items that are visible as long as three criteria are met; the officer must be legally present at the place where the evidence is in plain view, the officer must have lawful right of access, and the incriminating nature of the object must be immediately evident (Law.com, 2009).

Recent technological advances have called for new interpretations of the 4th Amendment and its applications regarding technology such as email, text messages, and electronic surveillance. The courts have determined that electronic surveillance requires a warrant to be admissible in court, but items that are seized during an arrest, such as a cell phone containing text messages and phone numbers do not need a warrant to be admissible (Clark, 2009). This was decided by the United States v. Pena and United States v. Brookes. These decisions were based on the fact that a suspect cannot refuse a search of their person during an arrest, and since the cell phone was seized during a legal search its contents are admissible. Courts are now regularly issuing warrants for seizure of only the computer of a suspect in an effort to gather evidence. In those cases the information found on the computer is also admissible in court. There are many recent cases regarding new technology and Constitutional rights because of the speed at which technology is advancing.

Suspects are protected during arrest by the 5th Amendment to the Constitution and the right against self incrimination it assures. Any statements that are acquired unlawfully are also protected by the 4th Amendment because statements can be seized illegally just as objects can be. The 1966 case of Miranda v. Arizona established that suspects should be informed of their right to remain silent before being questioned by police (Rogers, et. al., 2007). This decision led to states adopting Miranda warnings or verbal explanations outlining the right to remain silent and possible consequences of not exercising that right. Miranda warnings are often given at the time of arrest, but are required in most states before any questioning takes place. The 6th Amendment also comes into play because it protects the right to legal representation, and a defendant has the right to refuse to answer questions without an attorney present. A defendant may inform police that he chooses not to answer any questions until his attorney is present and this right is protected by the Constitution (Minas, 2002). A defendant cannot be legally coerced or forced by the police to answer questions without an attorney present if the defendant has verbally made that request. Any statements acquired by coercion or force may be inadmissible in court because they were given under duress. 

The 4th Amendment is one of the few Constitutional Amendments that offers a specific remedy for violations. This remedy is called the exclusionary rule. The exclusionary rule notes that the 4th Amendment's protection against "unreasonable searches and seizures" can be enforced in two ways; one is to exclude evidence found through an illegal search, and the other is to hold police officers legally accountable for conducting an illegal search (Savage, 2009). The exclusionary rule states that any evidence acquired during an illegal search and seizure may be inadmissible in court. The Exclusionary Rule is an important remedy in the enforcement of the 4th Amendment because it provides a negative consequence for violations. Unfortunately this remedy often goes in favor of the guilty by suppressing evidence necessary for a conviction. For this reason there are many Americans do not support the Exclusionary Rule and consider it to be a good example of what is wrong with our legal system – criminals have too many rights and victims too few.

The rights of the accused are protected by the Constitution after arrest as well. The 5th Amendment protection against self-incrimination continues to be in effect after arrest. A defendant has the right to refuse to answer self-incriminating questions during police questioning and during trial. This Amendment was most notably used during the first half of the 20th century by the Mafia. It is said that mobster Frank “Lefty” Rosenthal exercised his 5th Amendment right thirty-seven times (La Vien, 1993). Perhaps the right to remain silent should be used more sparingly than it was used by “Lefty” because silence can easily be interpreted as guilt by a jury. There are also relationships that are privileged, for example an attorney cannot be required to testify against his client and in most cases a husband or wife cannot be compelled to testify against their spouse. Conversations that occur in a protected relationship such as attorney/client, husband/wife, doctor/patient, or priest/penitent are protected against forced disclosure. These conversations can only be disclosed with consent.

The 5th Amendment to the Constitution also offers protection against double jeopardy or being tried for the same crime twice. If a defendant has already been convicted or acquitted on an offense they cannot be tried again for the same offense. For example, if a defendant is convicted for committing a murder and sentenced to prison they cannot be brought up on the same murder charges upon release from prison or at any time.

The 8th Amendment to the Constitution assures against excessive bail. The pretrial release decision-making process has two potentially conflicting goals; the first is to allow pretrial release for persons who have been accused of criminal offenses pending adjudication of their charges, and the second is to ensure that accused persons appear in court to face charges and that they do not pose a threat to anyone during pretrial release (Clark & Henry, 1997). The amount required for bail is determined by the judge during arraignment and is determined based on the defendant’s flight risk and is proportionate to the crime. The 8th Amendment assures that a bail amount will not be set that is too high for the crime that was committed. Individuals can be held without bail in extreme cases when the defendant is considered dangerous or when they are considered a high flight-risk. This must be requested by the prosecution and granted by a judge.

Defendants are granted the right to legal counsel by the 6th Amendment. A defendant has the right to choose an attorney, have a court appointed attorney, or represent themselves in court. Unfortunately some defendants cannot afford to hire an attorney and many public defenders are too busy to put much effort into their defense. Many poverty-stricken defendants go to court without ever meeting their court appointed attorney. The right to legal counsel is assured by the Constitution, but the ability to acquire it is not. Because of this the 6th Amendment is not as beneficial as it could be.

Another right granted by the 6th Amendment to the Constitution is the right to be informed of the nature and cause of the accusation. A defendant has the right to know, in detail, what he is being accused of and what evidence there is against him. The nature and details of the offense must be explained in enough detail that double jeopardy can be determined if the same charges are brought up at a later date. The charges must be explained fully and directly without ambiguity.

One of the major rights granted by the Bill of Rights and the U.S. Constitution is the right to a speedy and public trial. There is no absolute time limit that defines a speedy trial, but defendants are protected against unnecessary delays in the legal process and hearing of their case by the 6th Amendment. A trial cannot be delayed by the prosecution in an attempt to benefit their case, but it can be delayed for reasons such as an absent witness or for other justifiable reasons. If a defendant agrees to a delay he cannot later claim that he has been denied his Constitutional right to a speedy trial.

Although the right to a public trial is granted by the 6th Amendment the Supreme Court has ruled that this right is not absolute. Public access to a trial can be limited if there are good reasons for doing so. Sometimes media coverage of trials can be damaging to the fairness of the trial process. When this is a possibility access to the trial is limited in an attempt to preserve the fairness of the process. When public access to a trial is limited the court must ensure that the defendant is still receiving a fair trial. The right to a public trial is intended to ensure fairness by ensuring openness. The public acts as overseers during the trial process; this encourages trust in the fairness of the legal process.

During the trial the defendant has the right to call witnesses in his defense and the right to confront or cross-examine witnesses against him. This right is also granted by the 6th Amendment. This right gives the defendant the opportunity to defend himself by presenting witnesses to testify on his behalf, but also gives the defendant the opportunity to question the credibility of witnesses called to testify against him. This right also applies to evidence presented by the prosecution; the defense has the right to examine all evidence and test its validity. This is another way the Constitution assures a fair trial.

A defendant’s rights are protected by the Constitution after the trial as well. The 8th Amendment protects individuals against excessive fines. All criminal cases result in fines and court costs; the 8th Amendment assures that the fines charged for a crime are proportionate to the crime. Fines are normally standard for a certain type of crime and are the same for each person who commits that crime. For example, driving without a seatbelt results in a $65.00 fine in the state of Michigan. An individual cannot be charged a significantly higher fine for this offense than the law calls for. The Supreme Court decided in the 1998 case of United States v. Bajakajian that an individual cannot be charged fines that are grossly disproportional to the offense (The Oyez Project, 2009). Bajakajian was charged $357,144 for the offense of not properly reporting taking $10,000 out of the country. The Supreme Court decided that this fine was grossly disproportionate to the offense and therefore unconstitutional.

The most significant and commonly debated right guaranteed by the 8th Amendment is the protection from cruel and unusual punishment. There have been numerous Supreme Court cases that have sought to determine the intent and scope of this constitutional right. Many of these cases have been related to the death penalty and when it is permissible or not permissible. In the 1974 case of Coker v. Georgia the Supreme Court decided that the death penalty is grossly disproportionate to the crime of rape and therefore in any case not involving death (The Oyez Project, 2009).

The death penalty is not the only issue covered by the 8th Amendment, however. There have been many Supreme Court cases dealing with excessive punishments that do not involve capital punishment. In the 1944 case of Trop v. Dulles the Court decided that revoking citizenship is cruel and unusual punishment because citizenship is not a license that expires upon misbehavior. Army private Albert Trope was charged with desertion during wartime and under the 1940 Nationality Act lost his citizenship. The Court determined that this punishment was cruel and unusual because it destroyed Trop’s status in organized society (The Olez Project, 2009). 

The Court has also made decisions regarding jail and prison sentences and the 8th Amendment. In the 1962 case of Robinson v. California the Court decided that it was unconstitutional to incarcerate an individual for being addicted to drugs or for any illness. This decision was based on the fact that drug addiction was considered an illness and the Court decided that it is cruel and unusual to put an individual in jail because they have an illness (The Olez Project, 2009). The Court also determined in the case of Harmelin v. Michigan that cruel and unusual punishment does not apply to proportionality in regard to prison sentences. Harmelin was sentenced to life in prison without parole for the possession of 650 grams of cocaine. The Court decided that this was not cruel and unusual punishment (The Olez Project, 2009). The Court has upheld life sentences without the possibility of parole for fraud charges, drug charges, and theft charges. Some states have a three strikes law that imposes a life sentence without parole for any third offense, and the Supreme Court has repeatedly upheld these convictions even though the punishment is disproportionate to the crime.

The United States Constitution was written with one of the main purposes being the protection of the rights of the American people. The writers of the Constitution were careful to outline specific rights and protections, and the Supreme Court has interpreted these rights and their limitations in numerous cases since. Specifically the Bill of Rights, containing the first ten amendments to the Constitution, focuses primarily on the rights of those accused of committing crimes. The Bill of Rights aims to protect the human rights of the accused and ensure fairness in the American criminal justice system. The 4th, 5th, 6th, and 8th Amendments to the Constitution ensure a speedy and public trial, right to an attorney, right against self incrimination, right to security and privacy, the protection against double jeopardy, the right to call witnesses, the right to confrontation, the right against excessive bail or fines, and the right against cruel and unusual punishment. It is these rights outlined by the Bill of Rights that are the foundation of the American justice system. These Amendments protect the rights of the accused before arrest, after arrest, during the trial, after acquittal or conviction, and after sentencing. Because of these Amendments human rights are protected for all the accused - the guilty and the innocent.


Davenport, A. U. (2009). Basic Criminal Law (2nd ed). New Jersey. Pearson Education

Law.com. (2009) Online. Retrieved from dictionary.law.com/default2.asp?selected=1538&bold=%7C%7C%7C%7C - 16k – on May 18, 2009.

Clark, Wesley, M.  (2009, February). Searching Cell Phones Seized Incident to Arrest. FBI Law

Clark, John,  Henry, Alan D. (1997). The pretrial release decision. Judicature, 81(2), 76-81.  Retrieved May 23, 2009, from Research Library database. (Document ID: 45017243).

Le Vien, Douglas, Jr. and Papa, Juliette. The Mafia Handbook. New York: Penguin Books, 1993

Minas, Mellissa.  (2002). Blurring the line: Impact of offense-specific sixth amendment right to counsel. Journal of Criminal Law & Criminology, 93(1), 195-225.  Retrieved May 23, 2009, from Research Library database. (Document ID: 356633351)

Rogers, R. and Harrison, Kimberly S. and Shuman, Daniel W. and Sewell, Kenneth W. and Hazelwood, Lisa L. (2007). An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage. Law and Human Behavior, 31(2), 177-92.  Retrieved May 23, 2009, from ABI/INFORM Global database. (Document ID: 1238683411).

References cont.

Savage, David G.  (2009). Who's Policing the Fourth Amendment? ABA Journal, 95(4), 19-20.  Retrieved May 23, 2009, from ABI/INFORM Global database. (Document ID: 1673586181).

The Oyez Project, United States v. Bajakajian , 524 U.S. 321 (1998)

Retrieved from http://oyez.org/cases/1990-1999/1997/1997_96_1487 on May 25, 2009

The Oyez Project, Coker v. Georgia , 433 U.S. 584 (1977)

Retrieved from http://oyez.org/cases/1970-1979/1976/1976_75_5444 on May 25, 2009

The Oyez Project, Trop v. Dulles , 356 U.S. 86 (1958)

retrieved from (http://oyez.org/cases/1950-1959/1956/1956_70) on May 25, 2009

The Oyez Project, Harmelin v. Michigan , 501 U.S. 957 (1991)

retrieved from http://oyez.org/cases/1990-1999/1990/1990_89_7272 on May 25, 2009

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