The Eighth Amendment Prohibits Government From Bringing Someone to Trial Again After Acquittal.

Learning Objectives

By the end of this department, y'all volition be able to:

• Place the rights of those suspected or defendant of criminal activity
• Explain how Supreme Courtroom decisions transformed the rights of the accused
• Explicate why the Eighth Amendment is controversial regarding capital punishment

In addition to protecting the personal freedoms of individuals, the Pecker of Rights protects those suspected or accused of crimes from diverse forms of unfair or unjust treatment. The prominence of these protections in the Beak of Rights may seem surprising. Given the colonists' experience of what they believed to exist unjust rule by British authorities, nevertheless, and the use of the legal organization to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to anybody accused of a offense—no matter how unpopular—is perhaps more understandable. What is more than, the revolutionaries, and the eventual framers of the Constitution, wanted to go on the all-time features of English law as well.

In addition to the protections outlined in the Fourth Amendment, which largely pertain to investigations conducted before someone has been charged with a crime, the next four amendments pertain to those suspected, accused, or convicted of crimes, besides equally people engaged in other legal disputes. At every stage of the legal process, the Bill of Rights incorporates protections for these people.

THE 5th Amendment

Many of the provisions dealing with the rights of the defendant are included in the Fifth Amendment; accordingly, it is i of the longest in the Pecker of Rights. The Fifth Amendment states in total:

"No person shall be held to respond for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in bodily service in time of War or public danger; nor shall whatever person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or belongings, without due procedure of law; nor shall private property be taken for public use, without just compensation."

The first clause requires that serious crimes be prosecuted only after an indictment has been issued by a grand jury. However, several exceptions are permitted as a consequence of the evolving estimation and agreement of this amendment by the courts, given the Constitution is a living document. Get-go, the courts have generally found this requirement to apply merely to felonies; less serious crimes can be tried without a thousand jury proceeding. Second, this provision of the Bill of Rights does not apply to united states of america considering information technology has not been incorporated; many states instead require a judge to agree a preliminary hearing to decide whether in that location is enough testify to agree a total trial. Finally, members of the armed forces who are accused of crimes are not entitled to a grand jury proceeding.

The Fifth Subpoena also protects individuals against double jeopardy, a process that subjects a suspect to prosecution twice for the aforementioned criminal act. No i who has been acquitted (found not guilty) of a criminal offense can be prosecuted over again for that law-breaking. But the prohibition confronting double jeopardy has its own exceptions. The virtually notable is that it prohibits a second prosecution only at the same level of regime (federal or state) equally the first; the federal government tin try you lot for violating federal law, even if a state or local courtroom finds you not guilty of the aforementioned action. For example, in the early 1990s, several Los Angeles police force officers defendant of brutally beating motorist Rodney King during his arrest were acquitted of various charges in a state courtroom, but some were after convicted in a federal court of violating King's civil rights.

The double jeopardy rule does not foreclose someone from recovering damages in a civil example—a legal dispute between individuals over a contract or compensation for an injury—that results from a criminal deed, fifty-fifty if the person accused of that act is establish non guilty. One famous case from the 1990s involved quondam football game star and television personality O. J. Simpson. Simpson, although acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a criminal court, was after found to be responsible for their deaths in a subsequent civil case and as a result was forced to forfeit most of his wealth to pay damages to their families.

Perhaps the well-nigh famous provision of the Fifth Subpoena is its protection against cocky-incrimination, or the correct to remain silent. This provision is so well known that nosotros accept a phrase for it: "taking the Fifth." People have the right non to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not prove in their ain defense, the prosecution cannot employ that failure to bear witness as evidence of guilt or imply that an innocent person would evidence. This provision became embedded in the public consciousness following the Supreme Court's 1966 ruling in Miranda v. Arizona , whereby suspects were required to exist informed of their nearly important rights, including the correct against self-incrimination, before beingness interrogated in police custody.⁴⁸ However, contrary to some media depictions of the Miranda warning, law enforcement officials do non necessarily have to inform suspects of their rights before they are questioned in situations where they are free to leave.

Like the Fourteenth Amendment's due process clause, the Fifth Subpoena prohibits the federal government from depriving people of their "life, liberty, or holding, without due process of law." Recall that due procedure is a guarantee that people will exist treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts take interpreted this provision to mean that government officials must establish consistent, fair procedures to make up one's mind when people'due south freedoms are limited. In other words, citizens cannot be detained, their liberty limited, or their property taken arbitrarily or on a whim past police or other authorities officials. As a outcome, an unabridged trunk of procedural safeguards comes into play for the legal prosecution of crimes. However, the Patriot Deed, passed into constabulary after the nine/11 terrorist attacks, somewhat contradistinct this notion.

The final provision of the Fifth Amendment has little to do with crime at all. The takings clause says that "private holding [cannot] be taken for public utilise, without just compensation." This provision, along with the due procedure clause's provisions limiting the taking of property, tin can be viewed as a protection of individuals' economic liberty: their right to obtain, utilize, and trade tangible and intangible property for their ain benefit. For example, yous have the correct to trade your knowledge, skills, and labor for coin through work or the apply of your holding, or merchandise money or goods for other things of value, such as article of clothing, housing, education, or food.

A significant recent controversy over economic liberty has been sparked past cities' and states' use of the power of eminent domain to take property for redevelopment. Traditionally, the primary employ of eminent domain was to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require fairly straight routes to be efficient. Because whatever single holding owner could effectively block a item route or excerpt an unfair price for land if information technology was the last piece needed to assemble a route, there are reasonable arguments for using eminent domain as a last resort in these circumstances, particularly for projects that convey substantial benefits to the public at large.

However, increasingly eminent domain has been used to allow economic evolution, with beneficiaries ranging from politically connected big businesses such as machine manufacturers building new factories to highly assisting sports teams seeking ever-more-luxurious stadiums (Effigy 4.14). And, while we traditionally think of holding owners equally relatively well-off people who can fend for themselves in the political system and whose rights don't necessarily need protecting, these cases frequently pit lower- and eye-course homeowners against multinational corporations or multimillionaires with the ear of urban center and state officials. In a notorious 2005 case, Kelo v. City of New London , the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical visitor's corporate campus.⁴⁹ Ultimately, the campus was not built on the seized land and the instance led to a public backlash against the use of eminent domain and legal changes in many states, making information technology harder for cities to take property from one individual party and give it to another for economic redevelopment purposes. Eminent domain has over again go a salient event in the context of the Trump administration'due south attempt to use the doctrine to seize several parcels of private property for the proposed border wall.⁵⁰

Figure four.14 AT&T Stadium in Arlington, Texas, sits on state taken by eminent domain. (credit: John Purget)

Some disputes over economic liberty take gone beyond the idea of eminent domain. In the by few years, companies seeking to offer profitable services online such equally straight sales by electrical car manufacturer Tesla Motors, on-demand ride-sharing services like Lyft and Uber, and short-term property rentals through companies like Airbnb accept led to disharmonize with states and cities trying to regulate these businesses, and with incumbent service providers such as hotels and taxi cabs. In the absenteeism of new public policies to analyze rights, the path forward is often determined through norms established past governments or by court cases.

Sometimes, however, the legislative procedure seeks to clarify or improve the interpretation and application of amendments. The 5th Amendment Integrity Restoration Act is aimed at reducing the practice of civil forfeiture, in which governments and law enforcement entities seize property of people suspected of crimes, prior to confidence and sometimes without bringing formal charges. The government can take financial assets, jewelry, vehicles, art, and other items of value. The bipartisan bill backed past organizations ranging from the conservative-leaning Heritage Foundation to the ACLU, would reduce what its Senate sponsor, Rand Paul, refers to as "policing for turn a profit." Civil forfeiture was a mainstay of the war on drugs and contributed to the mass incarceration of people of colour. Information technology can be economically dissentious even for those who are never charged or convicted, because in many cases seized property is not returned to its possessor. Various court cases accept ruled on aspects of the practice, just have not eliminated it derisively, leaving the opportunity for a new police force to address it.

THE SIXTH Subpoena

One time someone has been charged with a crime and indicted, the next stage in a criminal instance is typically the trial itself, unless a plea deal is reached. The Sixth Amendment contains the provisions that govern criminal trials. I total, it states:

"In all criminal prosecutions, the accused shall relish the right to a speedy and public trial, by an impartial jury of the State and commune wherein the criminal offence shall have been committed, which district shall take been previously ascertained by law, and to be informed of the nature and cause of the accusation; to exist confronted with the witnesses against him; to take compulsory procedure for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic]."

The first of these guarantees is the correct to accept a speedy, public trial by an impartial jury. Although in that location is no absolute limit on the length of time that may pass betwixt an indictment and a trial, the Supreme Court has said that excessively lengthy delays must be justified and balanced confronting the potential damage to the defendant.⁵¹ In result, the speedy trial requirement protects people from existence detained indefinitely by the government. Notwithstanding the courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant'due south right to a off-white trial, it can be held behind closed doors, while prosecutors can asking closed proceedings only in certain, narrow circumstances (generally, to protect witnesses from retaliation or to guard classified information). In general, a prosecution must also exist made in the "country and district" where the criminal offense was committed; however, people accused of crimes may ask for a alter of venue for their trial if they believe pre-trial publicity or other factors go far difficult or incommunicable for them to receive a fair trial where the crime occurred.

Link to Learning

Although the Supreme Court's proceedings are not televised and there is no video of the courtroom, audio recordings of the oral arguments and decisions announced in cases have been fabricated since 1955. A complete collection of these recordings tin can be found at the Oyez Project website along with full data nigh each case.

Most people accused of crimes decline their right to a jury trial. This choice is typically the result of a plea bargain, an agreement betwixt the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perchance to less serious charges, in substitution for more than lenient punishment than they might receive if convicted after a full trial. There are a number of reasons why this might happen. The evidence against the accused may be and then overwhelming that conviction is a near-certainty, so the accused might decide that avoiding the more serious punishment (perhaps even the death penalty) is amend than taking the small chance of beingness acquitted after a trial. Someone accused of existence part of a larger law-breaking or criminal arrangement might agree to testify against others in exchange for lighter penalization. At the same time, prosecutors might want to ensure a win in a case that might not hold upwardly in court past securing convictions for offenses they know they can evidence, while avoiding a lengthy trial on other charges they might lose.

The requirement that a jury be impartial is a critical requirement of the Sixth Amendment. Both the prosecution and the defense force are permitted to refuse potential jurors who they believe are unable to fairly decide the case without prejudice. Yet, the courts accept besides said that the limerick of the jury as a whole may in itself be prejudicial, and so potential jurors may not exist rejected only considering of their race or sex, for example.⁵²

The Sixth Amendment guarantees the right of those defendant of crimes to present witnesses in their own defense force (if necessary, compelling them to testify) and to face and cross-examine witnesses presented past the prosecution. In full general, the only testimony adequate in a criminal trial must be given in a court and exist subject to cantankerous-examination; hearsay, or testimony past i person about what some other person has said, is generally inadmissible, although hearsay may be presented as evidence when information technology is an access of guilt past the defendant or a "dying declaration" past a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.

Finally, the Sixth Subpoena guarantees the right of those accused of crimes to accept the assist of an attorney in their defense. Historically, many states did not provide attorneys to those accused of most crimes who could non afford one themselves, and even when an attorney was provided, their assistance was ofttimes inadequate, at best. This situation inverse as a issue of the Supreme Court's determination in Gideon v. Wainwright (1963).⁵³ Clarence Gideon, a poor drifter, was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried and bedevilled and sentenced to a five-twelvemonth prison house term. While in prison and still without help of a lawyer, he drafted a handwritten appeal and sent information technology to the Supreme Court, which agreed to hear his case (Figure four.15). The justices unanimously ruled that Gideon, and anyone else accused of a serious offense, was entitled to the assistance of a lawyer, fifty-fifty if they could not afford 1, as part of the full general due process right to a fair trial.

Figure four.xv The handwritten petition for appeal (a) sent to the Supreme Court past Clarence Gideon, shown hither circa 1961 (b), the year of his Florida abort for breaking and entering.

The Supreme Court later extended the Gideon five. Wainwright ruling to apply to whatsoever case in which an accused person faced the possibility of "loss of liberty," even for one day. The courts have besides overturned convictions in which people had incompetent or ineffective lawyers through no mistake of their ain. The Gideon ruling has led to an increased need for professional person public defenders, lawyers who are paid by the authorities to represent those who cannot afford an attorney themselves, although some states instead crave practicing lawyers to stand for poor defendants on a pro bono basis (substantially, altruistic their time and energy to the case).

Insider Perspective

Criminal Justice: Theory Meets Practice

Typically, a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against the person, to be fabricated aware of the right to counsel, and to enter a plea. Other hearings may be held to decide on the admissibility of prove seized or otherwise obtained by prosecutors.

If the 2 sides cannot agree on a plea deal during this period, the next phase is the option of a jury. A puddle of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in well-nigh states) and one or two alternates. All hear the evidence in the trial and unless an alternating must serve, the original twelve decide whether the evidence overwhelmingly points toward guilt, or innocence beyond a reasonable doubt.

In the trial itself, the lawyers for the prosecution and defense make opening arguments, followed past testimony by witnesses for the prosecution (and any cross-examination), and so testimony by witnesses for the defense force, including the accused if the defendant chooses. Additional prosecution witnesses may be chosen to rebut testimony by the defense. Finally, both sides make endmost arguments. The guess then issues instructions to the jury, including an admonition not to discuss the case with anyone exterior the jury room. The jury members leave the courtroom to enter the jury room and begin their deliberations (Figure 4.16).

Figure four.16 A typical courtroom in the United States. The jury sits along 1 side, betwixt the judge/witness stand and the tables for the defense and prosecution.

The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review bear witness or to hear transcripts of testimony. They deliberate in cloak-and-dagger and their decision must be unanimous. If they are unable to agree on a verdict after extensive deliberation, a mistrial may be alleged, which in issue requires the prosecution to try the case all over again.

A defendant found not guilty of all charges will be immediately released unless other charges are pending (due east.thou., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of 1 or more offenses, the guess will choose an advisable sentence based on the law and the circumstances. In the federal system, this judgement will typically exist based on guidelines that assign bespeak values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should exist subject to death penalty or life imprisonment.

The reality of court procedure is much less dramatic and exciting than what is typically portrayed in television shows and movies. Nonetheless, most Americans will participate in the legal arrangement at least once in their lives every bit a witness, juror, or defendant.

Have you or any member of your family served on a jury? If then, was the experience a positive 1? Did the trial proceed as expected? If you oasis't served on a jury, is it something yous look frontward to? Why or why not?

THE SEVENTH AMENDMENT

The Seventh Subpoena deals with the rights of those engaged in ceremonious disputes—disagreements between individuals or businesses in which people are typically seeking compensation for some harm acquired. For instance, in an automobile accident, the person responsible is compelled to compensate any others (either straight or through their insurance company). Much of the work of the legal organization consists of efforts to resolve ceremonious disputes. The 7th Amendment, in full, reads:

"In Suits at mutual law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the The states, than co-ordinate to the rules of the common constabulary."

Because of this provision, all trials in ceremonious cases must take place before a jury unless both sides waive their correct to a jury trial. However, this right is not always incorporated. In many states, civil disputes—particularly those involving pocket-sized sums of money, which may exist heard past a dedicated pocket-sized claims court—need not exist tried in front of a jury and may instead be decided by a estimate working solitary.

The Seventh Amendment limits the ability of judges to reconsider questions of fact, rather than of police, that were originally decided by a jury. For instance, if a jury decides a person was responsible for an activeness and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional mutual-police distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular example.

THE 8th Subpoena

The Eighth Amendment says, in total:

"Excessive bail shall not be required, nor excessive fines imposed, nor fell and unusual punishments inflicted."

Bond is a payment of money that allows a person accused of a criminal offense to be freed pending trial. If you lot "make bail" in a case and practise not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay bail directly, they may instead get a bail bond, which allows them to pay a fraction of the money (typically 10 pct) to a person who sells bonds and who pays the full bail corporeality. (In most states, the bond seller makes money because the defendant does non get back the money for the bond, and most people bear witness up for their trials.) Notwithstanding, people believed likely to flee or who correspond a risk to the community while gratis may be denied bail and held in jail until their trial takes place.

It is rare for bond to exist successfully challenged for existence excessive. The Supreme Court has defined an excessive fine every bit i "so grossly excessive as to amount to deprivation of property without due process of law" or "grossly disproportional to the gravity of a defendant's crime."⁵⁴ Historically, the courts have rarely struck down fines as excessive, though California and other states have recently passed legislation seeking to reform the more discriminatory aspects of the bail organization.

The most controversial provision of the Eighth Subpoena is the ban on "brutal and unusual punishments." Various torturous forms of execution common in the past—drawing and quartering, called-for people alive, and the electric chair—are prohibited past this provision.⁵⁵ Recent controversies over lethal injections and firing squads demonstrate that the topic of whether and how to execute is still very much alive. The Dutch producer of i of the chemicals in the most mutual lethal injection cocktail recently refused to consign it to the United States when it was shown to protract the dying process for some inmates, maintaining consciousness, prolonging suffering, and paralyzing response. In a 2021 example, ane death row prisoner lost an entreatment to request death by firing squad in lieu of lethal injection. While the Supreme Court has never established a definitive exam for what constitutes a cruel and unusual penalisation, it has generally allowed near penalties short of death for adults, even when the punishment appears disproportionate or excessive to outside observers.⁵⁶

In recent years the Supreme Courtroom has issued a serial of rulings substantially narrowing the awarding of the death penalty. Equally a event, defendants who have intellectual disabilities may not be executed.⁵⁷ Defendants who were nether eighteen when they committed an criminal offense that would otherwise be subject to the expiry penalty may not be executed.⁵⁸ The court has more often than not rejected the application of the capital punishment to crimes that did not result in the death of another human being existence, most notably in the instance of rape.⁵⁹ And, while permitting the expiry penalty to be applied to murder in some cases, the Supreme Court has generally struck down laws that crave the application of the capital punishment in certain circumstances. Still, the United States is amidst ten countries with the nearly executions worldwide, with the Trump Justice Department pushing through a flurry of thirteen executions in the final 4 months of his administration, breaking with the 130-twelvemonth-former precedent of pausing executions amid a presidential transition (Effigy 4.17).

Figure 4.17 The United States has the 12th highest per capita rate of execution in the world.

At the same fourth dimension, however, it appears that the public mood may have shifted somewhat against the death penalty, maybe due in part to an overall turn down in violent law-breaking. The reexamination of by cases through DNA show has revealed dozens in which people were wrongfully executed.⁶⁰ For example, Claude Jones was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his just that with better Deoxyribonucleic acid testing applied science was later found to be that of the victim.⁶¹ Perhaps as a consequence of this and other cases, seven additional states accept abolished death penalty since 2007. Every bit of 2015, 19 states and the District of Columbia no longer apply the death penalty in new cases, and several other states do non carry out executions despite sentencing people to decease.⁶² It remains to be seen whether this gradual trend toward the elimination of the death sentence by united states of america volition continue, or whether the Supreme Court will eventually determine to follow former Justice Harry Blackmun'southward decision to "no longer… tinker with the mechanism of death" and abolish it completely.

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Source: https://openstax.org/books/american-government-3e/pages/4-3-the-rights-of-suspects

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