Brenda Colbert-CJ500-Unit 6 Assignment 1

Critical Legal Issues in Criminal Justice CJ500-Unit 6 Assignment Brenda Colbert Dale Brooker-Instructor September 28, 2011

Brenda Colbert-CJ500-Unit 6 Assignment 2 American criminal procedure as we know it consists of a vast set of rules and guidelines that describe how suspected and accused criminals are to be handled and processed by the justice system. Of great significance is the relationship between the police and the people suspected of criminal activity. Criminal procedure arms the police with the knowledge necessary to preserve the rights of individuals who are seized, searched, arrested, and otherwise inconvenienced by law enforcement officials. It also arms other actorssuch as judges, prosecutors, and defense attorneyswith the necessary information to preserve the rights of individuals accused of criminal activity (Worrall, 2010). Preserving the rights of the accused during a criminal investigation is one of the most prominent themes of the criminal procedure process (Worrall, 2010). And while many may feel that anyone being accused of a crime should not be granted any rights it is vital that the rights of the accused be preserved in the same manner as anyone else because if they were not preserved than that could mean that a person who is fact guilty could slip through the cracks and go free because their rights were violated during the criminal investigation process. The rights afforded to the accused are provided to them by the U.S. Constitution just are they are for any average U.S. citizen. They are provided to the accused through the various Amendments to the Constitution, primarily the Fourth, Fifth, Sixth, and Fourteenth Amendments. The Fifth Amendment, for example, whereas confessions are concerned, provides protection with its self-incrimination clause, which states, in relevant part, that no person shall be compelled in any criminal case to a witness against himself. The self-incrimination clause seems pretty straightforward in premise, but is has been litigated extensively in the courts over the years. For ease of exposition, the self-incrimination clause can be broken into four specific

Brenda Colbert-CJ500-Unit 6 Assignment 3 components which explain what it means to be: 1) compelled and; 2) in a criminal proceeding as well as what it means 3) to be a witness and 4) a witness against oneself (Worrall, 2010). But what exactly does it mean to be compelled? To be compelled means to be forced to do something(Collins English DictionaryComplete and Unabridged, 2003) and in a legal sense compulsion can occur: 1) during questioning in or out of court; 2) in written documents; and 3) when a person is threatened with noncriminal sanctions for failing to testify. Under the Fifth Amendment, a person cannot be compelled (or forced) to be a witness against himself. For example, in the case of Miranda v. Arizona, the Supreme Court held that the environment present in the setting of a custodial interrogation was so coercive that confessions obtained from a person under these circumstances were presumed to be coerced unless specific warnings were provided and waiver was obtained. This rule was developed primarily to protect the persons Fifth Amendment privilege against self-incrimination. According to Miranda, if the warning and waiver procedures are not followed when a person is in custody and subject to interrogation, any statement obtained is inadmissible in the prosecutions case in chief. Thus, the prosecution may not use statements, whether voluntary or inculpatory, stemming from custodial interrogation, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (Benoit, n.d.). But, the Fifth Amendment is not the only one that offers protection whereas interrogations and confessions are concerned; they are also protected by the Sixth Amendments right to counsel clause and the Fourteenth Amendments due process clause. What the Sixth Amendments right to counsel clause does is place restrictions on what the police can do to obtain confessions and admissions from criminal suspects. For example, in the case of Massiah v. United States, a decision by the Supreme Court led to the rule that the Sixth Amendments

Brenda Colbert-CJ500-Unit 6 Assignment 4 guarantee to counsel in all formal criminal proceedings is violated when the government deliberately elicits incriminating responses from a person. There are two key elements to the Sixth Amendment approach and they are deliberate elicitationwhich means police officers have created a situation likely to induce a suspect into making an incriminating statement, and formal criminal proceedingwhich addresses the Sixth Amendments right to counsel context, either a formal charge, preliminary hearing, indictment, information, or arraignment. And, finally the Fourteenth Amendments due process clause refers to the due process voluntariness approach to confessions and interrogations, which means that when a suspect makes an involuntary statement, his or her statement will not be admissible in a criminal trial (or in any other criminal proceeding) to prove guilt. A confession is considered to be not voluntary when, under the totality of circumstances that proceeded confessions, the defendant is deprived of his or her power of resistance (Worrall, 2010). For example, in the case of Fikes v. Alabama U.S. 191 (157) said petitioner, an uneducated Negro of low mentality or mentally ill, was convicted of burglary with intent to commit rape and was sentenced to death. Two confessions admitted in evidence at his trial obtained while he was held in a state prison far from his home, without the preliminary hearing required by Alabama law and without advice of counsel, friends or family. The first confession was obtained after five days of intermittent questioning by police officers for several hours at a time and the second five days after more such questioning. It was held that due to the circumstances of pressure applied against the power of resistance of the petitioner, who was of weak will or mind, deprived him of due process of law contrary to the Fourteenth Amendment (Justia-US Supreme Court Center, 2011). But, these Amendments do not only offer protection whereas confessions and interrogations are concerned; they also have application whereas identifications and witnesses

Brenda Colbert-CJ500-Unit 6 Assignment 5 are concerned. For example, the Fourth Amendment protects from an unlawful search and seizure conducted for the purpose of securing an identification. However, there is an exclusion; a witness can identify a suspect who is wrongfully seized if the identification is sufficiently independent of the illegal seizure. The Fifth Amendment typically does not apply to identification procedures. This is true even if a suspect is asked to supply a voice exemplar, if this is done for the purpose of identification (and not a confession or admission) (Worrall, 2010). The Sixth Amendment right to counsel exists in the context of making identification but only in limited circumstances. First, the right to counsel only applies if formal adversarial charges have commenced, and second, a suspect in a photographic array does not enjoy Sixth Amendment protection, regardless of whether charges have been filed. And, last but not least, the Fourteenth Amendments due process clause always applies to identification procedures. In particular, if an identification procedure is too suggestive, it will violate the Fourteenth Amendment (Worrall, 2010). So, as we can deter, even those accused of a crime are afforded a certain amount of privileges and rights under the various Amendments of the U.S. Constitution. And, while it may seem unfair that any individual being accused of a crime would be given any rights at all it is just as important that they be given the same amount of privileges that everyday citizens who walk the straight and narrow. Being fair to all citizens, regardless of their race, sex, choice of religion, or choice of lifestyle is the backbone of the U.S. Constitution and is the overall theme of our justice system. It may at times seem to be weighing on the side of the accused, but if you were to be in their shoes, wouldnt you want to be given the same privileges, especially if you were innocent? Of course you would, and so should anyone else who finds themselves faced with the finger of accusation being pointed at them.

Brenda Colbert-CJ500-Unit 6 Assignment 6 References: Worrall, John L. (2010). Criminal Procedure-From First Contact to Appeal. (Third Edition). Upper Saddle River, NJ: Pearson Education, Inc. Benoit, Carl A. (n.d.). Confessions and the Constitutions-The remedy for Violating Constitutional Safeguards. The FBI Federal Bureau of Investigation-FBI Law Enforcement Bulletin. Retrieved 10/06/2011, from: http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/april2010/confessions-and-the-constitution compel. (n.d). Collins English Dictionary-Complete and Unabridged. (2003). Retrieved 10/07/2011, from: http://www.thefreedictionary.com/compel Fikes v. Alabama, 352 U.S. 191 (1957). (2011). Justia US Supreme Court Center. Retrieved 10/07/2011, from: http://supreme.justia.com/352/191/