Rights of
the
Accused
The 5th, 6th & 8th
Amendments
Your Right to Rights
 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
Writ of Habeas Corpus
 Latin for “present the body”
 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
 Often last step in capital appeals process
 Can be suspended when required by public safety
(rebellion or invasion)
No Bills of Attainders
Bill of attainder: Punishment without
trial or accusation of specific crime
Possible example: seizure of Nixon’s
White House papers by act of
Congress
No Ex Post Facto Laws
 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)
 Does not apply to civil laws
Treason Convictions
Require…
 Testimony of two independent witnesses
 OR Confession in open court
 Treason is the only crime defined in Constitution
(because often unfairly applied)
 Levying war against the U.S.
 Adhering (giving aid and comfort) to enemies of
the U.S.
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
 “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 5th Amendment has not been
nationalized)
No Double Jeopardy
 Cannot be tried twice for the same crime IF
 The jury reaches a verdict in the original trial
 Appeals are exempted
 Can be tried again in another court (if federal
AND state crime or criminal AND civil offense
is accused)
Free from SelfIncrimination
 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
 Accused cannot be forced to confess under duress
(psychological or physical pressure); forced
questioning prohibited
Free from SelfIncrimination
 Can only be invoked if a crime is involved – cannot
be used to protect against embarrassment
 Cannot be invoked if prosecutors grant immunity
 Miranda Rule: Accused persons must be read their
rights (Miranda v. Arizona 1966)
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”)
 In CA: misdemeanor trials begin in 30 days if the
accused is in custody; 45 days if not
 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
Trial by Impartial Jury
 Guaranteed in criminal cases by 6th Amendment
 Guaranteed in civil cases worth more than $20 by
7th 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)
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
 “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 be waived in favor of a bench/court trial, where
the judge determines the verdict
Hear the Charges
Against You
“informed of the
nature and cause
of the
accusation”
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)
 The gorilla in the room – brains see what they
want/expect to see
 Difficulty of cross-racial identification
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)
 Witnesses not wishing to testify can be
compelled to do so through a court-issued
subpoena (an order to appear)
Assistance of Counsel
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 federal criminal trials (Johnson v. Zerbst)
 and during questioning (Escobedo v. Illinois 1964)
 Individuals who cannot afford counsel receive a courtappointed attorney from either the public defender’s office,
the alternate public defender, or the bar panel

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”
 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
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
 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)
No Cruel or Unusual
Punishment

Atkins v. Virginia 2002: Death penalty for
mentally retarded 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