Criminal Justice and Your Constitutional Rights

Illustration of hands holding jail cell
Jens Magnusson / Getty Images

Life has taken a very bad turn. You’ve been arrested, arraigned, and now set to stand trial. Fortunately, whether you are guilty or not, the U.S. criminal justice system offers you several constitutional protections.

Of course, the overriding protection assured to all criminal defendants in America is that their guilt must be proven beyond a reasonable doubt. But thanks to the Due Process Clause of the Constitution, criminal defendants have other important rights, including the rights to:

  • Remain silent
  • Confront witnesses against them
  • Be tried by a jury
  • Get a public trial
  • Get a speedy trial
  • Be represented by an attorney
  • Not be tried twice for the same crime (double jeopardy)
  • Not to be subjected to cruel or unusual punishment

Most of these rights come from the Fifth, Sixth, and Eighth Amendments to the Constitution, while others have come from the decisions of the U.S. Supreme Court in examples of the five “other” ways the Constitution can be amended.

Right to Remain Silent

Typically associated with well-recognized Miranda rights that must be read to persons detained by the police prior to questioning, the right to remain silent, also known as the privilege against “self-incrimination,” comes from a clause in the Fifth Amendment which says that a defendant cannot “be compelled in any criminal case to be a witness against himself.” In other words, a criminal defendant cannot be forced to speak at any time during the detention, arrest and trial process.

If a defendant chooses to remain silent during the trial, he or she cannot be forced to testify by the prosecution, the defense, or the judge. However, defendants in civil lawsuits can be forced to testify.

Right to Confront Witnesses

Criminal defendants have the right to question or “cross-examine” witnesses who testify against them in court.

This right comes from the Sixth Amendment, which gives every criminal defendant the right to “be confronted by the witnesses against him.”  The so-called “Confrontation Clause” has also been interpreted by the courts as prohibiting prosecutors from presenting as evidence oral or written “hearsay” statements from witnesses who do not appear in court. Judges do have the option of allowing non-testimonial hearsay statements, such as calls to 911 from people reporting a crime in progress. However, statements given to police during the investigation of a crime are considered to be testimonial and are not allowed as evidence unless the person making the statement appears in court to testify as a witness. As part of the pre-trial process called the “discovery phase,” both lawyers are required to inform each other and the judge of the identity and expected testimony of the witnesses they intend to call during the trial.

In cases involving the abuse or sexual molestation of minor children, the victims are often afraid to testify in court with the defendant present. To deal with this, several states have adopted laws allowing children to testify via closed-circuit television. In such instances, the defendant can see the child on the television monitor, but the child cannot see the defendant.

Defense attorneys can cross-examine the child via the closed circuit television system, thus protecting the defendant’s right to confront witnesses.

Right to Trial by Jury

Except in cases involving minor crimes with maximum sentences of no more than six months in jail, the Sixth Amendment assures criminal defendants the right to have their guilt or innocence decided by a jury in a trial to be held in the same “State and district” in which the crime was committed.

While juries typically consist of 12 people, six-person juries are allowed. In trials heard by six-person juries, the defendant can only be convicted by a unanimous vote of guilty by the jurors. Typically a unanimous vote of guilt is required to convict a defendant. In most states, a non-unanimous verdict results in a “hung jury,” allowing the defendant to go free unless the prosecutor’s office decides to retry the case.

However, the Supreme Court has upheld state laws in Oregon and Louisiana allowing juries to convict or acquit defendants on ten-to-two verdicts by 12-person juries in cases where a guilty verdict cannot result in the death penalty.  

The pool of potential jurors must be chosen randomly from the local area where the trial is to be held. The final jury panel is selected through a process known as “voir dire,” in which lawyers and judges question potential jurors to determine if they might be biased or for any other reason unable to deal fairly with the issues involved in the case. For example, personal knowledge of the facts; acquaintanceship with parties, witnesses or attorney's occupation which might lead to bias; prejudice against the death penalty; or previous experiences with the legal system. In addition attorneys for both sides are allowed to eliminate a set number of potential jurors simply because they do not feel the jurors would be sympathetic to their case. However, these juror eliminations, called “peremptory challenges,” cannot be based on the race, sex, religion, national origin or other personal characteristics of the juror.

Right to a Public Trial

The Sixth Amendment also provides that criminal trials must be held in public. Public trials allow the defendant’s acquaintances, regular citizens, and the press to be present in the courtroom, thus helping to ensure that the government honors the defendant’s rights.

In some cases, judges can close the courtroom to the public. For example, a judge might bar the public from trials dealing with the sexual assault of a child. Judges can also exclude witnesses from the courtroom to prevent them from being influenced by the testimony of other witnesses. In addition, judges can order the public to leave the courtroom temporarily while discussing points of law and trial procedure with the lawyers.

Right to a Speedy Trial

While the Sixth Amendment ensures criminal defendants a right to a “speedy trial,” it does not define “speedy.” Instead, judges are left to decide whether a trial has been so unduly delayed that the case against the defendant should be thrown out.

Judges must consider the length of the delay and the reasons for it, and whether or not the delay had harmed the defendant’s chances of being acquitted.

Judges often allow more time for trials involving serious charges. The Supreme Court has ruled that longer delays can be allowed for a “serious, complex conspiracy charge” than for “an ordinary street crime.” For example, in the 1972 case of Barker v. Wingo, the U.S. Supreme Court ruled that a delay of over five years between arrest and trial in a murder case did not violate the defendant’s rights to a speedy trial.

Each judicial jurisdiction has statutory limits for the time between the filing of charges and the start of a trial. While these statutes are strictly worded, history has shown that convictions are rarely overturned due to claims of a delayed trial.

Right to Be Represented by an Attorney

The Sixth Amendment also ensures that all defendants in criminal trials have the right “… to have the assistance of counsel for his defense.” If a defendant cannot afford an attorney, a judge must appoint one who will be paid by the government. Judges typically appoint attorneys for indigent defendants in all cases which could result in a prison sentence.

Right Not to Be Tried Twice for the Same Crime

The Fifth Amendment provides: “"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This well-known “Double Jeopardy Clause” protects defendants from facing trial more than once for the same offense. However, the protection of the Double Jeopardy Clause does not necessarily apply to defendants who might face charges in both federal and state courts for the same offense if some aspects of the act violated federal laws while other aspects of the act violated state laws.

In addition, the Double Jeopardy Clause does not protect defendants from facing trial in both criminal and civil courts for the same offense. For example, while O.J. Simpson was found not guilty of the 1994 murders of Nicole Brown Simpson and Ron Goldman in criminal court, he was later found to be legally “responsible” for the killings in civil court after being sued by the Brown and Goldman families.

Right to Not be Punished Cruelly

Finally, the Eighth Amendment states that for criminal defendants, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The U.S. Supreme Court has ruled that the amendment's “Cruel and Unusual Punishment Clause” also applies to the states.

While the U.S. Supreme Court has held that the Eighth Amendment forbids some punishments entirely, it also forbids some other punishments that are excessive when compared to the crime or compared to the defendant’s mental or physical competence.

The principles the Supreme Court uses to decide whether or not a particular punishment is “cruel and unusual” were solidified by Justice William Brennan in his majority opinion in the landmark 1972 case of Furman v. Georgia. In his decision, Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'.”

  • The essential factor is “that the punishment must not by its severity be degrading to human dignity.” For example, torture or an unnecessarily long and painful death.
  • “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
  • “A severe punishment that is clearly and totally rejected throughout society.”
  • “A severe punishment that is patently unnecessary.”

Justice Brennan added, “The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity.”