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 procedure•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 duringany 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)

EntrapmentSherman 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 

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•98 countries have abolished all forms of

capital punishment•49 countries have pragmatically abolished

the practice of capital punishment (no one on death row; no one sentenced to death in the last 10 years)

•7 countries have abolished the death penalty for all crimes except basically treason/espionage

•40 countries still retain the death penalty

Capital Punishment:International Perspective• China executes the largest number of persons

each year (thought to be around 4,000/year)• Roughly 95 percent of all executions annually

are carried out by: ▫China▫Iran▫Saudi Arabia▫Iraq▫United States▫Yemen▫North Korea

• Between 20,000 – 24,000 persons are currently on death row, worldwide

Capital Punishment:The American Experience

• 33 states legally retain the use of the death penalty, including Nebraska

• There have been between 21,000 – 22,000 legal executions since the mid-1600s

• There have been another 10,000 lynching’s • There were 7,500 legal executions in the 20th

century• There have been 1,275 executions since 1967

(roughly 1 every 10 days)• There are roughly 3,250 people currently on

death row

Capital Punishment:The American Experience

•California has the largest number of individuals on death row (roughly 720)

•Texas has executed the largest number of persons since 1967 (roughly 480)

•Since 1992, roughly 165 individuals who were sentenced to death have been freed/found innocent, due to DNA testing. 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•There are 58 persons on federal death row •There are 6 individuals on the U.S. Military

prison’s death row•There are 60 females currently on death row •There have been 11 females executed since 1976•Average age of an individual on death row is 43•Average length of time from sentence to

execution is roughly 15 years

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

• 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

Key 8th Amendment Cases•McCleskey v. Kemp - specific intent to

discriminate against an individual must bedemonstrated 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 PunishmentThe 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 executethe 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