Welcome to Week 5!

This week we will focus on two constitutional amendments: the Fifth and the Sixth.

The Fifth Amendment

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 protects against self-incrimination and guarantees citizens due process of law by limiting the federal government’s actions: “No person shall . . . be compelled in any criminal case to be a witness against himself” and “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The Supreme Court has extended the elements of due process through case law beyond the words of the Constitution but in keeping with its spirit. Voluntariness of a confession is determined by 1) the police conduct involved and 2) the characteristics of the accused.

Miranda remains the precedent case referred to by courts analyzing confession issues. The four
warnings included in Miranda are 1) you have the constitutional right to remain silent, 2) anything you say can and will be used against you in court, 3) you have the right to talk to a lawyer now and have him/her present now or at any time during questioning, and 4) if you cannot afford a lawyer, one will be appointed for you without cost. The Miranda warning must be given to a suspect interrogated in police custody, that is, when the suspect is not free to leave. If after hearing an officer read the Miranda warning, a suspect remains silent, that silence is not a waiver. To waive their rights, suspects must state, orally or in writing, that 1) they understand their rights and that 2) they will voluntarily answer questions without a lawyer present.

The Sixth Amendment

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 defence.

We focus this week also on the Sixth Amendment. The Sixth Amendment requires a speedy and public trial. The Sixth Amendment also requires that the trial occurs in the district in which the crime was committed and that defendants have the right to an impartial and representative jury. The confrontation clause requires that witnesses be present in court so the defendant can confront them.

The right to counsel is the only Sixth Amendment guarantee that extends beyond the trial. Denying legal counsel for a defendant at trial is clearly a denial of due process (Powell v. Alabama). Gideon v. Wainwright established that indigent defendants are to be provided lawyers when faced with a “deprivation of liberty.” Beyond that, when police inquiry has begun to focus on a particular suspect, custodial interrogation at the police station entitles a suspect to legal representation (Escobedo v. Illinois).

The Sixth Amendment right to legal counsel occurs at every critical stage of a criminal proceeding, including during the investigation, at hearings and during the trial. After a defendant has been charged with a crime and retained an attorney, that attorney must be present during any subsequent questioning. Miranda invokes both the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. The exclusionary rule will prohibit confessions obtained in violation of these rights from being used in court.

The Sixth Amendment right to counsel presumes counsel is effective. A waiver of one’s Sixth Amendment right to counsel must be knowing and voluntary. Individuals can appear in court without attorneys, representing themselves, that is, pro se. In re Gault applied Sixth Amendment rights to juveniles, including the right against self-incrimination, to receive notice of the charges, to confront and cross-examine witnesses and the right to counsel. Finally, for prisoners, cases based on the Sixth Amendment involve the right to a speedy trial and the detainer problem.

Learning Objectives:

Understand what the Fifth Amendment prohibits the government from doing and what the amendment guarantees.
Name the four warnings that are included in Miranda.
Explain when the Miranda warning must be given.
Grasp what constitutes a valid waiver of Miranda rights.
Enumerate what Rights, in addition to due process, are guaranteed by the Fifth Amendment.
List the four factors that are considered in determining whether a trial is sufficiently “speedy.”
Identify the two requirements for juries established by the Sixth Amendment.
Name the guarantee of the Sixth Amendment that extends beyond the trial.
Explain when the Sixth Amendment right to counsel exists.
Summarize what is required if the right to counsel is waived.
Pinpoint whether juveniles have Sixth Amendment rights.
Know how the Sixth Amendment affects corrections.