The Most Important Constitutional Rights In Criminal Cases

Constitutional rights are those rights that are enumerated in the U.S. Constitution, and also in the constitutions of the various U.S. states. In a criminal prosecution, your constitutional rights are your strongest protection against improper police conduct and wrongful conviction.

Most of the protections extended to criminal defendants under the federal constitution were composed in reaction to specific abuses by British authorities during Colonial times. The rights described in the federal constitution must be observed by all agents of the federal government and, for the most part, by agents of the states.


The Most Important Constitutional Rights in Criminal Proceedings

The most important rights of criminal defendants, as protected by the U.S. Constitution, are set forth in the following provisions:

Article 1, Section 10 of the U.S. Constitution

Article 1 of the constitution forbids ex post facto laws and bills of attainder:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

These prohibitions protects people from criminal charges in the following manner:

  • Ex Post Facto Laws: An ex post facto law is a law that is passed after a person has committed an act in order to allow for the criminal prosecution of the person's prior act. As a result of the prohibition of ex post facto laws, you may only be prosecuted under the laws that are in effect at the time of your alleged criminal act.

  • Bills of Attainder: A bill of attainder is a law that is passed in order to punish a specific individual, usually without judicial process. Pursuant to this protection, the state is prohibited from passing a law that declares a specific individual or group of people guilty of an offense and imposes a punishment upon them, with or without a trial. This protection ensures that a criminal law targets a specific behavior that a legislature intends to outlaw, and does not instead target an individual or group.

Fourth Amendment Rights

The Fourth Amendment to the U.S. Constitution provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment provides general protections against arbitrary search and seizure of persons and property, including a general requirement that an agent of the state must obtain a search warrant before searching a person or their property.

  • Unreasonable Search and Seizure: The Fourth Amendment protects against arbitrary searches, and provides the foundation for the potential suppression (exclusion) of improperly seized evidence from use in a criminal prosecution.

  • Warrant Requirement: Absent compelling circumstances,┬ábefore searching a person, their property or their home the police are required to obtain a search warrant to be issued by a neutral magistrate upon a showing of probable cause. The failure to obtain a warrant may result in the suppression of evidence improperly seized, such that it cannot be used in a later criminal prosecution.

Although there are many exceptions to the Fourth Amendment warrant requirement, that provision gives broad protection to the general public from inappropriate police conduct.

Fifth Amendment Rights

The Fifth Amendment to the U.S. Constitution provides,

No person shall be held to answer 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 actual service in time of war or public danger; nor shall any person be subject for the same offense 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 property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment describes a number of very important legal protections that are now often taken for granted.

  • Double Jeopardy: Double jeopardy occurs when the state tries a defendant more than once for the same offense. Pursuant to the constitutional protection against double jeopardy, the state may not retry a defendant who has been acquitted of the offense, whose case is dismissed for reasons other than his own misconduct after a jury is empanelled and sworn in, or after the judge started to hear evidence in a bench trial. Retrial may otherwise be possible following a mistrial or remand from a successful appeal.

  • The Right to Remain Silent: A defendant's right to remain silent and not have the exercise of that right be treated as evidence of guilt is protected by the Fifth Amendment right that a defendant not to be compelled to be a witness against himself.

  • Due Process of Law: Due process rights include an enormous array of procedural protections that are intended to help ensure a fair trial.

  • Miranda Rights: A criminal suspect's right to receive a Miranda warning prior to custodial interrogation arises from the Fifth Amendment. Miranda warnings instruct suspects that they have the right to remain silent, that statements they give may be used against them, and of their right to be represented by counsel.

Sixth Amendment Rights

The Sixth Amendment to the U.S. Constitution provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Among the important rights of criminal defendants that are protected by the Sixth Amendment, are:

  • Jury Trial: The Sixth Amendment protects the right to trial by jury for all felonies and most misdemeanor offenses, as opposed to having a criminal case heard by a judge with no jury present.

  • Disclosure of Charges: Defendants have the right to be informed of the nature of the charges that have been filed against then by the state and of the potential punishments that could be imposed upon conviction.

  • The Right to Counsel: Defendants in criminal cases have the right to be represented by a lawyer. For all felony offenses and most misdemeanors, indigent defendants facing criminal charges have the right to court-appointed lawyers to assist them with their defense and represent them in court.

  • Confrontation of Witnesses: Criminal defendants have the right to compel witnesses to appear at trial, the right to confront (question and cross-examine) witnesses at trial, and the right to receive help from the state to locate missing witnesses and ensure that they appear at trial.

  • Speedy Trial: Speedy trial rights protect defendants against undue delay in the trial of a suspect, a right that is most important for defendants who are being detained by the state prior to trial. Although a defendant may waive his speedy trial rights, this right prevents the state from incarcerating defendants for years while their trials are perpetually delayed.

Eighth Amendment Rights

The Eighth Amendment to the U.S. Constitution provides,

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

The Eighth Amendment prohibits:

  • Excessive Bail: The Eighth Amendment prohibits the imposition of excessive bail in federal prosecutions. Bail is deemed excessive when it is required in amount unreasonably in excess of bail that would reasonably assure the defendant's appearance at trial. This provision does not apply to prosecutions in state court.

  • Excessive Fines: Defendants are protected from financial penalties in amounts that are not reasonable for the criminal charge or under the facts of their cases.

  • Cruel and Unusual Punishments: The Eighth Amendment protects defendants from being punished for a crime with a penalty that is severely degrading to human dignity, inflicted in a wholly arbitrary fashion, that is clearly and totally rejected throughout society, or that is wholly unnecessary. For example, historic punishments such as flogging or putting a defendant in stocks are now forbidden as cruel and unusual.

Fourteenth Amendment Rights

Section One of the Fourteenth Amendment to the U.S. Constitution provides,

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment provides the foundation for the expansion of federal constitutional protections to defendants in state courts.

  • Equal Protection: The first Section of the Fourteenth Amendment requires that all citizens be granted equal protection of the laws. Under that provision, neither state governments nor the federal government may deprive an individual or class of people of the rights enjoyed by other persons who are similarly situated.

  • Privileges and Immunities: The Privileges and Immunities Clause prohibits the states from treating the citizens of different states in a discriminatory manner, and similarly prohibits the federal government from giving different treatment to the citizens of different states.

  • Due Process: The Fourteenth Amendment extends the constitution's Due Process rights to state prosecutions, and it is through this clause that the majority of the rights listed in the Bill of Rights have been incorporated to the States. Incorporation is the process by which the Supreme Court declares a constitutional protection to bind state governments and their agents, as well as the federal government.

Federal Constitutional Rights in State Court

The Bill of Rights is the name given to the first ten amendments to the U.S. Constitution. Most of the rights provided to criminal defendants by the Bill of Rights have been incorporated to the states through the Fourteenth Amendment, meaning that those rights apply in both state and federal prosecutions.

The only exceptions are:

  • The Fifth Amendment right to indictment by grand jury; and
  • The Eighth Amendment protection against excessive bail.

All other rights apply to both state and federal prosecutions.

State Constitutional Rights

For the most part, the rights enumerated in state constitutions are similar to those described in the U.S. Constitution.

No state may extend to a defendant less protection than that which is required by the U.S. Constitution. Thus, with the exception of excessive bail and indictment by grand jury for which states may follow their own laws, states must respect and observe a defendant's rights under the U.S. Constitution.

However, a state may offer greater protections to its citizens than those that are required by the U.S. Constitution. That is, a state may grant a defendant additional rights beyond what the U.S. Constitution requires. Many state constitutions include language that is broader than that of the U.S. Constitution, and states may also interpret state constitutional provisions more broadly than the U.S. Supreme Court interprets the U.S. Constitution. For example:

  • Under the U.S. Constitution, you have no reasonable expectation of privacy in garbage that you have left at the curb. However, some states recognize privacy rights in garbage, meaning that the government must have probable cause and potentially have to obtain a search warrant before it can search curbside garbage.
  • A sobriety checkpoint involves the police stopping drivers to verify their sobriety even in the absence of individualized suspicion that the drivers are intoxicated. Under the U.S. Constitution, a properly conducted roadside sobriety checkpoint is constitutional. States may nonetheless prohibit sobriety checkpoints under their state constitutions, or impose restrictions and offer protections to drivers that are not required by the U.S. Constitution.
Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.