Rights of the Criminally Accused

AuthorGary Goodpaster
Pages2254-2257

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In criminal prosecutions, the state can bring its authority, organizational power, and resources to bear against individuals. History, particularly precolonial and early colonial English history, demonstrated to the American Revolutionaries that governments could and did use their prosecution powers abusively?to imprison or destroy political enemies, tyrannize or cow populations, and preserve or advance unpopular regimes or policies. For such reasons, the Constitution and BILL OF RIGHTS included provisions restricting governmental use of prosecution powers and granting the criminally accused procedural protection.

Among these are specific denials of governmental authority to take certain kinds of actions, such as constitutional proscriptions on EX POST FACTO LAWS, BILLS OF ATTAINDER, and suspension of HABEAS CORPUS. The Fifth, Sixth, and Eighth Amendments accord the criminally accused specific criminal process rights. In addition, there are criminal process rights and protections mentioned neither in the Constitution nor the Bill of Rights, such as the right of proof of guilt beyond a REASONABLE DOUBT, which the Supreme Court has concluded are necessarily implied from the Constitution, history, and American practice. Finally, the FOURTH AMENDMENT right against unreasonable SEARCHES AND SEIZURES, a right accorded to all persons in the United States, has particular significance and impact in criminal proceedings.

Of principal importance are the criminal defendant's inferred and specifically listed constitutional trial rights. Although not expressly mentioned in the Constitution, first and foremost among these is the right of trial under an adversary system of trial. Adversary trial, as opposed to inquisitional trial, was the established form of trial at COMMON LAW, and has always been the American practice?so much so that it has been deemed an essential feature of the Sixth Amendment right to a fair trial. In an inquisitional system of trial, judicial officials take an active role in advancing a prosecution and eliciting facts, and lawyers, or party representatives, play a rather passive role. In contrast, in the adversarial system, the parties to a prosecution, through their attorneys, control the presentation of EVIDENCE, and the judge plays the more passive role of umpire, attempting to insure both a fair contest between the parties and a fair fact determination. Party control of the presentation of evidence significantly enhances its ability to shape evidence to its advantage or to influence the fact finder, particularly in jury trials, where laypersons determine facts and decide questions of criminal responsibility.

Although criminal adversary trial is grounded in a rhetoric of a fair contest between equals as a way to accord both fairness to defendants and to discover truth, adversary trial actually has an asymmetric structure in which the prosecution has greater burdens and obligations than the defense. In particular, the prosecution has the burden of presenting a prima facie case against a defendant?the burden of proving guilt beyond a reasonable doubt?and an obligation to disclose to the defense evidence favorable to the defendant and material relevant to issues of guilt or punishment.

Although rarely considered to be a right of the accused,

Page 2255

the government's burden of first presentation of evidence does confer potential strategic or tactical advantages on the defense in a criminal case. Knowing the specific nature of the prosecution's case, the defense can shape its own proofs for greatest benefit. Similarly, the prosecution's burden of proving guilt beyond a reasonable doubt, which the Supreme Court held in In re Winship (1970) to be a constitutional requirement, is, in effect, a defendant's right to require the government to prove guilt to a substantial certainty. This high burden inhibits the government from bringing or winning prosecutions based on weak evidence, and precludes the use of evidentiary presumptions that might favor it.

The prosecution also has a duty to disclose evidence. This requirement, which is derived from DUE PROCESS fairness considerations, insures there is no miscarriage of justice through failure to disclose evidence bearing on guilt. There is, however, no reciprocal, counterpart defense duty to disclose evidence favorable to the prosecution. With narrow exception, the Court has interpreted the requirements of adversary trial and the Fifth Amendment RIGHT AGAINST SELF-INCRIMINATION to prohibit the government from requiring the defense to provide evidence to the prosecution or otherwise to assist it in its case.

Adversary trial, as now understood, also assumes attorney representatives for each party, and the Court has interpreted the Sixth Amendment...

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