Fundamental Rights of the Accused

Under the Fifth, Sixth, and Eighth Amendments to the United States Constitution, criminal defendants have a number of guaranteed rights when under investigation or facing prosecution.

Your 5th Amendment Rights

The 5th Amendment provides the basis for many well-known rights of criminal defendants:

• It allows you to refuse to testify or make statements that might be self-incriminating.
• It requires “due process of law” before you can face certain criminal penalties. The U.S. Supreme Court has held that, among other things, “due process” requires the prosecution to prove the defendant’s guilt “beyond a reasonable doubt.”
• It mandates a grand jury indictment for capital offenses and other serious crimes.
• It contains the “double jeopardy” clause, which protects you from being prosecuted twice for the same crime.

The “due process” guaranteed by the 5th Amendment has been construed by the courts to include both substantive due process and procedural due process. Both seek to confirm whether the process applied in a criminal proceeding justifies the loss of life, liberty, or property to which the defendant will be subjected. Substantive due process looks essentially at whether the punishment fits the crime, whereas procedural due process examines whether the defendant had a fair and adequate opportunity to mount a defense.

Your 6th Amendment Rights

The 6th Amendment seeks to ensure that a criminal defendant receives a fair trial, setting forth many specific rights for criminal defendants, including the following:

• the right to trial by jury
• the right to trial in a timely manner
• the right to be informed of all pending charges
• the right to confront witnesses against you
• the right to have legal counsel available to you
• the right to compel favorable witnesses to testify at trial

When originally drafted, the provisions of the 6th Amendment applied specifically to the federal government and federal prosecutions. Courts have since decided that the Due Process Clauses of the 14th Amendment require states to recognize the same rights in state criminal proceedings.

8th Amendment Protections

The 8th Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. Though the Amendment does not specify what constitutes “cruel and unusual punishment,” many of the framers of the Constitution expressed concerns about the use of forms of torture by law enforcement. The U.S. Supreme Court has held that the death penalty does not per se qualify as cruel and unusual punishment.

Miranda Warnings

In an expansion on the rights set forth in the Constitution, the U.S. Supreme Court established, in its 1966 ruling in Miranda v. Arizona, that anyone taken into custody must be notified (orally or in writing):

• that they have the right to remain silent;
• that anything they say can and will be used against them in a court of law;
• that they have the right to be represented by counsel; and
• that, if they cannot afford an attorney, one will be appointed for them.

Though some of the provisions of Miranda have been weakened, it remains the law of the land.