Protection of
Individual Freedom!
Example – What Compels Kids to Commit Adult Crimes?
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Share your reactions
Due Process of Law:
Other Examples?
the government must act fairly and in accord with established rules.
…the easiest way to think of due process is through the government’s use of police powers…
1. Search and Seizure
a. Exclusionary Rule:
2. Arrest
a. Miranda Rights
1. You have the right to remain silent and refuse to answer questions. Do you understand?
2. Anything you do say may be used against you in a court of law. Do you understand?
3. You have the right to consult an attorney before speaking to the police and to have an attorney
present during questioning now or in the future. Do you understand?
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
Do you understand?
5. If you decide to answer questions now without an attorney present you will still have the right to
stop answering at any time until you talk to an attorney. Do you understand?
6. Knowing and understanding your rights as I have explained them to you, are you willing to
answer my questions without an attorney present?
3. Confinement, Trial, and Punishment
a.
Trial Protections:
▪ No Double Jeopardy
▪ Right to speedy, public trial
▪ Right to trial by jury
▪ Right to adequate defense
▪ No forced self-incrimination
(Ex- Gideon v. Wainwright)
b.
Punishment Protections:
▪ No excessive bails/fines
▪ No cruel/unusual punishment
Miranda v. Arizona, (1966)
What are Miranda rights?
Police generally read these rights to individuals about to be questioned in custody. "You have the
right to remain silent. If you give up the right to remain silent, anything you say can and will be used
against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot
afford one, an attorney will be obtained for you before police questioning."
The Miranda rule was developed to protect the individual's Fifth Amendment right against selfincrimination. The Miranda warning ensures that people in custody realize they do not have to talk to the
police and that they have the right to the presence of an attorney.
If the Miranda warning is not given before questioning, or if police continue to question a suspect
after he or she indicates in any manner a desire to consult with an attorney before speaking, statements
by the suspect generally are inadmissible at trial—they cannot be used against the suspect.
Background Summary
s
Ernesto Miranda was a poor Mexican immigrant living in Phoenix, Arizona, in 1963. Miranda was
arrested after a crime victim identified him in a police lineup. Miranda was charged with rape and
kidnapping and interrogated for two hours while in police custody. The police officers questioning him did
not inform him of his Fifth Amendment right against self-incrimination, or of his Sixth Amendment right
to the assistance of an attorney.
s
As a result of the interrogation, he confessed in writing to the crimes with which he was charged. His
written statement also included an acknowledgement that he was aware of his right against selfincrimination. During his trial, the prosecution used his confession to obtain a conviction, and he was
sentenced to 20 to 30 years in prison on each count. Miranda's defense attorney appealed to the Arizona
Supreme Court. His attorney argued that his confession should have been excluded from trial because he
had not been informed of his rights, nor had an attorney been present during his interrogation. The police
officers involved admitted that they had not given Miranda any explanation of his rights. They argued,
however, that because Miranda had been convicted of a crime in the past, he must have been aware of his
rights. The Arizona Supreme Court denied his appeal and upheld his conviction.
The case comes down to this fundamental question: What is the role of the police in protecting the rights
of the accused, as guaranteed by the Fifth and Sixth Amendments to the Constitution? The Fifth
Amendment states that no person "shall be compelled in any criminal case to be a witness against
himself. . . ." The Sixth Amendment states that, "In all criminal prosecutions, the accused shall enjoy the
right . . . to have the assistance of counsel for his defense." The Supreme Court of the United States had
made previous attempts to deal with these issues. In Brown v. Mississippi (1936), the Court had ruled
that the Fifth Amendment protected individuals from being forced to confess. In Gideon v. Wainwright
(1963), the Court held that persons accused of felonies have a fundamental right to an attorney, even if
they cannot afford one. In 1964, after Miranda's arrest, the Court ruled that when an accused person is
denied the right to consult with his attorney, his or her Sixth Amendment right to counsel is violated
(Escobedo v. Illinois). But do the police have an obligation to ensure that the accused person is aware of
these rights? If so, at what point in the criminal justice process must the defendant learn of these rights?
Question for Discussion: Some would argue that it is the individual's responsibility to know what his or her
rights are under the Constitution, and the government can assume that accused persons know their rights without
informing them.
Do you think the government should have to inform each individual who is arrested of his or her rights?
Why or why not?