1. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

2. ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Chapter 5 Constitutional Rights After Arrest UNIT TWO: CRIMINAL PROCEDURE

3. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Introduction Of primary importance to defendants is the right to have an attorney represent their interests. The right to counsel includes the right to a court- appointed attorney if money is a problem. Defendants also have the right to remain silent. Some forms of physical evidence can be compelled.  The Constitutional Right to Counsel in Criminal Cases 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 right to assistance of counsel wasn’t widespread until this century.  For many years, the right to be represented by a member of the bar was limited to capital cases.

4. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  By 1938 the right was extended to all federal felony cases.  By 1963, defendants charged with any felony, state or federal, were entitled to counsel regardless of their ability to pay for one.  By 1964, the Supreme Court had ruled that confessions obtained after police did not tell the defendant he was entitled to counsel or refused to let him talk to his attorney are not admissible.  A defendant has a right to counsel at his or her arraignment, preliminary hearing, during most police questioning, during a lineup, at trial, and at sentencing. In addition, he or she has a right to counsel for his or her first appeal.  The Supreme Court decided in the Miranda case that police have an obligation to inform a suspect of his rights under the Constitution.

5. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Police must inform any person under arrest or held that he has the following rights before questioning begins:  That he has the right to remain silent;  That anything he says can and will be used against him;  That he has the right to an attorney during questioning;  That if he can not afford one, one will be appointed at no charge before questioning; and  That at anytime during the questioning, he can stop and the interrogation will end.  The Supreme Court, in a 5-4 decision, upheld the use of physical evidence found as a result of information gleaned from an illegal confessions.

6. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The Poor and the Right to Counsel The defendant has the right to “effective” assistance of counsel. Indigent defendants have the right to court-appointed counsel at no charge. The right to counsel continues after trial through the posttrial appeals and any direct appellate appeals.  The Constitutional Right to Remain Silent That right is enshrined in the Fifth Amendment to the Constitution as “No person…shall be compelled in any criminal case to be a witness against himself. A person who refuses to answer questions about alleged criminal activities is said to “plead the Fifth”.

7. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 All men and women are innocent until proven guilty. Confessions can only be used against a defendant if the prosecution can show that they followed the procedures laid out in Miranda and that they did not coerce or otherwise extract a confession from the defendant. Because the right to remain silent is the right against self-incrimination, in order for the right to apply, the act of speaking must be related to the possibility of criminal prosecution. If a defendant has been given immunity, testimony can be compelled.

8. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Immunity It has long been the rule that a person who receives immunity can be compelled to testify, no matter how personally embarrassing or humiliating testifying may be.  Use Immunity Immunity falls into two different categories. The first is use immunity. If a defendant is granted use immunity, anything he says to investigators cannot be directly used against him in a later trial.  The key is that independent evidence gathered by the police or others can be used even if immunity has been granted as long as it can be shown that it wasn’t the testimony that led to the discovery of the evidence.

9. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Transactional Immunity Transactional immunity is the preferred form of immunity for defendants. With transactional immunity, the government is forever barred from prosecuting the defendant for the crime from which he or she was granted immunity.  Privilege and the Right to Keep Others Silent A concern for the sanctity and privacy of personal conversation and actions is inherent in the Constitution and the Bill of Rights.

10. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Attorney-Client Privilege The attorney-client privilege is one of the oldest recognized privileges for confidential communications. The privilege is intended to encourage full and frank communication between attorneys and their clients.  There must be an underlying agreement that the attorney has been retained to represent the defendant.  The attorney-client privilege does not extend to an attorney’s participation in a crime. The work product rule protects from disclosure any material the attorney created to prepare for trial.

11. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Spousal Privilege The spousal privilege is meant to protect private conversations between husband and wife and to protect marriages from the destructive effects of being compelled to testify against a husband or wife. The Supreme Court ruled that a spouse who voluntarily chooses to testify against her husband may do so. The privilege belongs to the person speaking, not to the other spouse. In state and local jurisdictions, this rule can have multiple variations.  Priest-Penitent Privilege Priest-penitent privilege was to keep secret statements made in the confessional.

12. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Patient-Counselor Privilege The patient-counselor privilege is the right to keep confidential conversations between a patient and his or her psychotherapist.  Compelling the Production of Physical Evidence The right against self-incrimination does not apply to physical evidence. The government can make a suspect produce physical evidence of guilt as long as the method used isn’t unreasonably intrusive. Taking a suspect to a hospital and making him vomit up evidence by pumping his stomach is unreasonably intrusive.

13. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Breath Analysis, Blood and DNA Evidence Most state driving under the influence laws provide that motorists stopped on suspicion of driving under the influence of drugs or alcohol must submit to a Breathalyzer test or forfeit their license to operate a motor vehicle. The results of the test can be admitted at a criminal trial. He or she can also be compelled to take a blood test to determine the amount and kind of intoxicant in the body. However, defendants and suspects can not be compelled to take physical tests that seek to measure physiological responses that the examiner can claim indicate guilt or a state of mind. DNA evidence is now routinely used to solve rape and murder cases. DNA analysis can exclude suspects altogether or provide compelling odds that the defendant committed the crime.

14. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The Right to a Speedy Trial The Sixth Amendment to the Constitution guarantees a defendant the right to a “speedy and public” trial. The Supreme Court has ruled that the right to a speedy trial is flexible.  The Court suggested that state and federal legislatures pass laws setting time limits.  As a result, most states have laws on the books that set strict time limits for bringing defendants to trial. The Speedy Trial Act of 1974 sets strict time limits for bringing federal defendants to trial. The penalty for violating the right to a speedy trial is dismissal of the charges. Statues of limitation set a deadline for the commencement of criminal actions, while the right to a speedy trial dictates how soon the trial must begin after a suspect has formally been charged with that crime.