Rights of the Accused:
5th, 6th, 8th Amendments
5th Amendment
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Notification of charges in advance
Formal hearing
Opportunity to hear and respond to charges
Opportunity to confront and cross examine
accusers
• Opportunity to present evidence in your own
behalf
5th Amendment…continued
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Free from self-incrimination
Right to counsel
Formal ruling on the record
An appellate review procedure
Cannot twice be held in jeopardy
Miranda v Arizona
Suspects must be informed of their basic rights at
the point of arrest, particularly the right to remain
Silent, and the right to have counsel present during
any interrogations.
All confessions admitted in court must meet the
two-fold Miranda tests of:
▫ Voluntariness
▫ Awareness
Miranda Warnings
• You have the right remain silent
• Anything you say can and will be used as
evidence against you in a court of law
• You have a right to consult with a lawyer and to
have the lawyer present during questioning
• If you cannot afford a lawyer, one will be
obtained for you if you so desire
• Do you understand these rights?
• Do you wish to have an attorney?
• Do you wish to speak to us now?
Miranda Offspring
Arizona v. Fulminante - the erroneous admission
of a coerced confession at trial does not constitute
grounds for an automatic mistrial, rather the
totality of the circumstances is to be applied to the
harmless error rule
Edwards v. Arizona - once a suspect in police custody
invoke their right to counsel, law enforcement officials
must cease their questioning with regard to the current
case and any other case until counsel is present, even if
the suspect later agrees to talk without an attorney present
Miranda Exceptions
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Inevitable discovery (Nix v. Williams)
Public safety
Routine traffic stops
Previously informed of rights (an exemption to
the awareness prong)
• Illegally obtained confessions may be used to
impeach the defendant’s testimony at trial
(Michigan v. Harvey; an extension of U.S. v.
Havens)
Entrapment
Sherman v. U.S. - if the criminal conduct is the
product of government agent creativity/if the
government induced the individual to commit a
crime that they otherwise would not have
committed, the government action would be
considered entrapment and the individual would be
free from any criminal liability for the act in
question
Key 6th Amendment Cases
• Gideon v. Wainwright - indigents have the right
to a legal counsel during the trial stage; the state
will appoint an attorney to the case if
the individual cannot afford one
• Escobedo v. Illinois - the right to counsel begins
at the point of focus
• Morrissey v. Brewer - parolees have no right to
legal counsel at parole revocation hearings
Key 8th Amendment Cases:
Bail Issues
• Stack v. Boyle (failure to appear test) - bail may be
denied if there is probable cause to believe that
defendants will fail to appear at future judicial
proceedings
• U.S. v. Salerno (dangerousness test) - bail may be
denied if there is clear and convincing evidence
that defendant are dangerous and pose a threat to
the community at large and the court participants
in particular
Capital Punishment:
International Perspective
• 98 countries have abolished all forms of capital
punishment
• 49 countries have pragmatically abolished the
practice of capital punishment (no one on death
row; no one sentenced to death in the last 10
years)
• 7 countries have abolished the death penalty for
all crimes except basically treason/espionage
• 40 countries still retain the death penalty
Capital Punishment:
International Perspective
• China executes the largest number of persons each
year (thought to be around 4,000/year)
• Roughly 95 percent of all executions annually are
carried out by:
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China
Iran
Saudi Arabia
Iraq
United States
Yemen
North Korea
• Between 20,000 – 24,000 persons are currently on
death row, worldwide
Capital Punishment:
The American Experience
• 33 states legally retain the use of the death penalty,
including Nebraska
• There have been between 21,000 – 22,000 legal
executions since the mid-1600s
• There have been another 10,000 lynching’s
• There were 7,500 legal executions in the 20th century
• There have been 1,275 executions since 1967 (roughly 1
every 10 days)
• There are roughly 3,250 people currently on death row
Capital Punishment:
The American Experience
• California has the largest number of individuals
on death row (roughly 720)
• Texas has executed the largest number of
persons since 1967 (roughly 480)
• Since 1992, roughly 165 individuals who were
sentenced to death have been freed/found
innocent, due to DNA testing. For every 8
individuals executed from 1992 to present, 1
individual has been released from death row
Capital Punishment:
The American Experience
• Nebraska has executed 23 persons since 1901
• There are 58 persons on federal death row
• There are 6 individuals on the U.S. Military
prison’s death row
• There are 60 females currently on death row
• There have been 11 females executed since 1976
• Average age of an individual on death row is 43
• Average length of time from sentence to
execution is roughly 15 years
Key 8th Amendment Cases
• Roper v. Simmons - the death penalty cannot be
administered to those who were 17 years of age or under
when the offense was committed
• Atkins v. Virginia - capital punishment is not a suitable
penalty for mentally retarded defendants; such a penalty is
excessive, when involving mentally retarded defendants
• Furman v. Georgia - the death penalty is not being
administered equitably
• Gregg v. Georgia - allows the death penalty to be
administered as long as the capital sentence is not
mandatory, aggravating and mitigating circumstances are
considered, and a bifurcated proceeding
Key 8th Amendment Cases
• McCleskey v. Kemp - specific intent to
discriminate against an individual must be
demonstrated before that individual's death
sentence can be set aside; intent over impact
• McCleskey v. Zant - defendants are entitled to a
limited number of habeas appeals in capital cases
• Herrera v. Collins - newly discovered evidence
demonstrating the actual innocence of the person
sentenced to death does not provide automatic
habeas corpus relief
Arguments in Favor
of Capital Punishment
• Just deserts perspective
• Vengeance/revenge perspective
• Specific deterrence
Arguments in Opposition
to Capital Punishment
• Brutalization phenomenon (no general deterrent
impact)
• Morally wrong to kill
• Miscarriages of justice
• Extreme socio-economic/ethnic bias
Cost of Capital Punishment
The cost of capital punishment varies from state
to state and from case to case, but it appears to
cost the State roughly 6 to 10 times more to
adjudicate a capital case and eventually execute
the individual vs. proceeding with a non-capital
murder case and administering (paying for) their
life sentence.
Impacts on homicide rates if capital
punishment is abolished:
• Decreases in homicide rates in countries that abolish the
death penalty (Canada; homicide rates dropped more
than 25%)
• Overly simplistic question. Changes in homicide rates
are due to many factors, not just the presence or absence
of a death penalty. More important factors are the
strength of communal bonds (church, school, family),
educational and employment opportunities, access to
handguns, the socio-economic inequity coefficient and
overall poverty levels, and extent of the drug trade. The
presence (or absence) of a death penalty loads very low
in a regression analysis context.
Capital Punishment Arguments: In Sum
• In Favor (micro):
▫ Just deserts perspective
▫ Vengeance/revenge perspective
▫ Specific deterrence
• In Opposition (macro):
▫ Brutalization phenomenon (no general deterrent
impact)
▫ Morally wrong to kill
▫ Miscarriages of justice
▫ Extreme socio-economic/ethnic bias
• Cost Factors