Protecting Rights of the Accused: 5th, 6th, 8th Amendments

Rights of the Accused:5th, 6th, 8th Amendments

5th Amendment • Notification of charges in advance • Formal hearing • Opportunity to hear and respond to charges • Opportunity to confront and cross examine accusers • Opportunity to present evidence in your own behalf

5th Amendment…continued • Free from self-incrimination • Right to counsel • Formal ruling on the record • An appellate review opportunity • Cannot twice be held in jeopardy

Miranda v Arizona Suspects must be informed of their basic rights at the point of arrest, particularly the right to remain Silent, and the right to have counsel present during any interrogations. All confessions admitted in court must meet the two-fold Miranda tests of: • Voluntariness • Awareness

Miranda Warnings • You have the right remain silent • Anything you say can and will be used as evidence against you in a court of law • You have a right to consult with a lawyer and to have the lawyer present during questioning • If you cannot afford a lawyer, one will be obtained for you if you so desire • Do you understand these rights? • Do you wish to have an attorney? • Do you wish to speak to us now?

Miranda Offspring Arizona v. Fulminante - the erroneous admission of a coerced confession at trial does not constitute grounds for an automatic mistrial, rather the totality of the circumstances is to be applied to the harmless error rule Edwards v. Arizona - once a suspect in police custody invoke their right to counsel, law enforcement officials must cease their questioning with regard to the current case and any other case until counsel is present, even if the suspect later agrees to talk without an attorney present

Miranda Exceptions • Inevitable discovery (Nix v. Williams) • Public safety • Routine traffic stops • Previously informed of rights (an exemption to the awareness prong) • Illegally obtained confessions may be used to impeach the defendant’s testimony at trial (Michigan v. Harvey; an extension of U.S. v. Havens)

Entrapment Sherman v. U.S. – If the criminal conduct is the product of government agent creativity, if the government induced the individual to commit a crime that they otherwise would not have committed, the government action would be considered entrapment and the individual would be free from any criminal liability for the act in question. The government cannot overbear an individual’s will to resist.

Key 6th Amendment Cases • Gideon v. Wainwright - indigents have the right to a legal counsel during the trial stage; the state will appoint an attorney to the case if the individual cannot afford one • Escobedo v. Illinois - the right to counsel begins at the point of focus • Morrissey v. Brewer - parolees have no right to legal counsel at parole revocation hearings

Key 8th Amendment Cases:Bail Issues • Stack v. Boyle (failure to appear test) - bail may be denied if there is probable cause to believe that defendants will fail to appear at future judicial proceedings • U.S. v. Salerno (dangerousness test) - bail may be denied if there is clear and convincing evidence that defendant are dangerous and pose a threat to the community at large and the court participants in particular

Capital Punishment:International Perspective • 106 countries have legally abolished all forms of capital punishment. • 30 countries have pragmatically abolished the practice of capital punishment (no one on death row, no death sentences handed down in the last 10 years). • 6 countries have abolished the death penalty for all crimes except treason and/or espionage. • 53 countries still retain the death penalty. • The United States is one of those countries that has the death penalty, but at this time, 20 states do not have the death penalty, and there is a moratorium on the use of the death penalty in a number of states. • About 20 – 25 countries/year carry out an execution.

Capital Punishment:International Perspective • Large numbers of executions are carried out by these nine countries, but exact figures are not available – Botswana, China, Indonesia, Nigeria, North Korea, Sudan, Syria, Taiwan, Vietnam • The largest number of executions each year are thought be carried out by China (around 1,000), but as noted above, exact figures are not available • Roughly 95 percent of all documented legal executions annually are carried out, in order, by Iran, Saudi Arabia, Iraq, Pakistan and Egypt • Roughly 22,000 persons are currently on death row, worldwide (excluding data from the nine nations noted above)

Capital Punishment:The American Experience • 30 states legally retain the use of the death penalty, as well as the U.S. federal government and the military • There have been between 21,000 – 22,000 legal executions since the mid-1600s • There have been another 10,000+ extralegal lynchings • There were 7,500 legal executions in the 20th century • There have been roughly 1,500 executions since 1967

Capital Punishment:The American Experience • There are approximately 2,700 people currently on death row • California has the largest number of individuals on death row (currently around 750) • Texas has executed the largest number of persons since 1967 (roughly 575 to date) • There were roughly 400 wrongful capital crime convictions in the United States in the 20th century. For every 8 individuals executed from 1992 to present, 1 individual has been released from death row

Capital Punishment:The American Experience • Nebraska has executed 23 persons since 1901 • Nebraska current has 12 persons on death row • There are roughly 60 persons on federal death row • There are 6 individuals on the U.S. Military prison’s death row • There are approximately 60 females on death row • There have been 15 females executed since 1967 (out of the roughly 1,500 persons executed since then)

Capital Punishment:The American Experience Methods of Execution: • Hung – 2 states • Shot – 3 states • Lethal Injection – 30 states, Federal and Military • Gas – 6states • Electric Chair – 9 states Internationally, add stoning, beheading, stabbing and throat slitting

Key 8th Amendment Cases • Roper v. Simmons - the death penalty cannot be administered to those who were 17 years of age or under when the offense was committed • Atkins v. Virginia - capital punishment is not a suitable penalty for mentally retarded defendants; such a penalty is excessive, when involving mentally retarded defendants

Capital Punishment:The American Experience • Public sentiment for the death penalty peaked in the 1930s when death sentences were handed down regularly • Public sentiment moved in opposition to capital punishment in the aftermath of World War II and by 1966, public support for the death penalty was at 42% • Public support rose thereafter, peaking in 1994 at 80% • Public support today is around 60% • While the Courts listen to the body politic, no Federal Court has ever ruled the death penalty to be cruel and unusual and in violation of the Constitution

Key 8th Amendment Cases • Furman v. Georgia - the death penalty is not being administered equitably • Gregg v. Georgia - allows the death penalty to be administered as long as the capital sentence is not mandatory, aggravating and mitigating circumstances are considered, and a bifurcated proceeding is utilized

Key 8th Amendment Cases • McCleskey v. Kemp - specific intent to discriminate against an individual must be demonstrated before that individual's death sentence can be set aside; intent over impact • McCleskey v. Zant - defendants are entitled to a limited number of habeas appeals in capital cases • Herrera v. Collins - newly discovered evidence demonstrating the actual innocence of the person sentenced to death does not provide automatic habeas corpus relief

Arguments in Favor of Capital Punishment • Just deserts perspective • Vengeance/revenge perspective • Specific deterrence

Arguments in Opposition to Capital Punishment • Brutalization phenomenon (no general deterrent impact) • Morally wrong to kill • Miscarriages of justice • Extreme socio-economic/ethnic bias

Cost of Capital Punishment The cost of capital punishment varies from state to state and from case to case, but it appears to cost the State roughly 6 to 10 times more to adjudicate a capital case and eventually execute the individual vs. proceeding with a non-capital murder case and administering (paying for) their life sentence.

Impacts on homicide rates if capital punishment is abolished: • Decreases in homicide rates in countries that abolish the death penalty (Canada; homicide rates dropped more than 25%) • Overly simplistic question. Changes in homicide rates are due to many factors, not just the presence or absence of a death penalty. More important factors are the strength of communal bonds (church, school, family), educational and employment opportunities, access to handguns, the socio-economic inequity coefficient and overall poverty levels, and extent of the drug trade. The presence (or absence) of a death penalty loads very low in a regression analysis context.

Capital Punishment Arguments: In Sum • In Favor (micro): • Just deserts perspective • Vengeance/revenge perspective • Specific deterrence • In Opposition (macro): • Brutalization phenomenon (no general deterrent impact) • Morally wrong to kill • Miscarriages of justice • Extreme socio-economic/ethnic bias • Cost Factors

Protecting Rights of the Accused: 5th, 6th, 8th Amendments