The Rights of the Accused before Trial

An Emphasis on the Rights of the Accused
Among the phrases from American legal language that have entered the common usage are "burden of proof" and "presumption of innocence." In legal actions against someone accused of a crime, the burden of proof is on the state to prove its case, not on the accused to prove his innocence--and certainly not forthe accused to prove his guilt. Closely tied with this is the presumption ofinnocence: the defendant is always innocent until proven guilty, and never the other way around. These ideas are usually associated with the system of trials, but they are in fact associated with the entire cycle of criminal procedure that begins at the point when a law enforcement officer makes an arrest.
Hand in hand with these principles go a number of others, embodied either inthe Constitution or in its amendments. Article III guarantees that the accused has a right to appear before a judge to determine whether he is being heldillegally (writ of habeas corpus); likewise it forbids bills of attainder, laws declaring a person guilty without trial; and ex post facto laws, or retroactive laws that attempt to punish someone for something that was not a crime when they did it. Article III also directs that "The trial of all Crimes, except in cases of Impeachment, shall be by Jury."
These provisions alone would make the U.S. legal system far more liberal thanmost others in the world. In many countries, people can be held for years, or even executed, without trial, and many other nations offer only a semblanceof the rule of law, vesting all power of judgement in a ruler or his appointed officials. This reality has been made painfully clear in the twentieth century, under totalitarian systems such as those in Nazi Germany; Soviet Russia, particularly under Stalin; and Communist China during and since the years of Chairman Mao Zedong. Hitler, Stalin, and Mao are long gone, but systems oflaw which favor the state over the individual, and treat the accused as guilty until proven innocent, are not.
The framers of the Constitution had no concept of such brutal repression; their example of injustice--the example they wished to avoid duplicating--was far more liberal, and indeed served as the model for many aspects of American government. This was English common law, which had evolved over the precedingcenturies to place limits on the power of the sovereign over his/her citizens. But a number of the framers were not satisfied with the guarantees of liberty embodied in the Constitution itself, and in 1791 Congress passed the firstten amendments to it, commonly known as the Bill of Rights. Modelled on theEnglish Bill of Rights (1689), these guaranteed additional liberties, and a number of them addressed the rights of citizens accused of crimes.
Primary among the Bill of Rights amendments addressing the rights of the accused are the Fifth, Sixth, and Eighth, which will be discussed below; as wellas the Fourth, which protects against unreasonable search and seizure. The Fourteenth Amendment, ratified in 1868, extended the Fifth Amendment's guarantee of due process to the states; and later rulings of the Supreme Court, oftenformed by an interpretation of the Fourteenth, further expanded the rights of the accused. The Court, and indeed the American legal system, also assumescertain rights which are stated neither in the Constitution nor in its amendments, but which are generally agreed to derive from them. Most notable amongthese is the requirement that guilt must be proven beyond a reasonable doubt.
The Right Against Self-Incrimination
The Sixth Amendment contains a key provision to which the government must abide at the beginning of the criminal justice process, arrest: the right to beinformed of the accusation. Under the authoritarian or totalitarian systems referred to above, persons can simply be arrested without even knowing the crime they have supposedly committed. By contrast, the U.S. system requires, under Rule 7 of the Federal Rules of Criminal Procedure, a "plain, concise, anddefinite written statement of the essential facts constituting the offense charged."
Closely tied to this Sixth Amendment right are several rights embodied in theFifth. The latter provides, among other things, that persons outside the armed forces must be indicted, or formally accused, by a grand jury. As its nameimplies, a grand jury is larger than an ordinary, or petit, jury, which is present at the actual trial; a grand jury, composed of as many as 23 persons drawn from the citizenry, evaluates the government's case against the criminally accused, and determines whether or not the state has sufficient cause to bring the case to trial.
Also guaranteed under the Fifth Amendment is the right against self-incrimination, which applies just as much before trial as it does during. In its application before trial, it has often been closely associated with the Fourth Amendment's prohibition against unreasonable search and seizure. For instance the Supreme Court in Boyd v. United States (1886) held that "[T]he seizure of a man's private books and papers to be used in evidence against him [would not be] substantially different from compelling him to be a witness against himself." In practical terms, this means that the police cannot come to aperson's house and say, "We know you've committed a crime--now show us the evidence"; likewise it means that a person under arrest will not be compelled to sit down and write out a confession, as often happened in Stalinist Russia.
These are both examples of coercion, an issue addressed by the Court in Bram v. United States (1897) and extended to state courts in Malloy v. Morgan (1964). Under coercion, the police in effect become the court, wresting confessions from the accused. Whereas in an authoritarian system policemight beat a confession out of the suspect, even in considerably less dramatic circumstances, an officer could unlawfully obtain incriminating evidence against the suspect simply by asking him leading questions. Concern for this possibility led to the Court's most well-known decision involving Fifth Amendment rights before trial, Miranda v. Arizona (1966). As a result of theMiranda ruling, law enforcement officers are required to inform persons under arrest of their right to remain silent.
The Right to Counsel
Of course the accused--assuming he pleads "not guilty" in a hearing--will eventually have to speak in his defense, either personally or, as is more likely, through legal counsel. The right to representation by an attorney is guaranteed in the Sixth Amendment, but the Court did not begin to explore the implications of this guarantee until 1932, with Powell v. Alabama. In this,the celebrated case of the Scottsboro boys, a group of young black men accused of raping two white women in Alabama, the Court found that the accused hadbeen denied the right to legal counsel, and its ruling extended the application of this right from the federal government to the states. As Justice George Sutherland wrote for the majority in Powell, "The right to be heardwould be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.... Without it [the accused] though he be not guilty...faces the danger of conviction because he does not know how to establish hisinnocence."
As with other rights discussed here, the right to counsel is as important prior to trial as it is when the trial commences; indeed, in Powell, theCourt described the pre-trial phase as "the most critical." There is an old saying that "he who speaks in his own defense has a fool for a lawyer," and this would seem to be true even if the accused is himself an attorney. But it is perhaps particularly so when the accused lacks education, as is often the case with economically disadvantaged defendants--precisely the people who cannot afford to pay legal counsel. For years, it was generally believed that theSixth Amendment implied that the court should appoint legal counsel to indigent, or poor, defendants in federal cases, and Gideon v. Wainwright (1963) opened the way for making court-appointed legal counsel a practice in the states as well.
Among the areas in which legal counsel is most helpful in the pre-trial phaseis during interrogation, or questioning by police following arrest. The Court upheld the right to have counsel present during interrogation in Escobedo v. Illinois (1964), and reinforced its holding two years later with theMiranda ruling. The presence of a lawyer at a police lineup is also extremely important. In a lineup, the accused is required to stand alongside other persons, often of similar description, while a witness or witnesses attempt to identify the person they saw committing the crime. The 1992 film The Player contains a memorable scene in which police officers attempt to influence the recollections of a witness in order to compel identification ofa suspect they believe to be the guilty party--a dramatic example of the needfor legal counsel at the lineup.
The (Implied) Right to Bail
The Eighth Amendment is much shorter than the Fifth and Sixth, and its importance with regard to the pretrial phase lies in its first six words: "Excessive bail shall not be required." This is the only mention of bail in the Constitution, but it has long been understood to imply that the accused has a rightto bail--not a right to pretrial release, but a right to have bail set.
Under the system of bail, the judge determines an amount of money which the accused, or persons associated with him, must turn over to the court in orderto secure his release from incarceration prior to trial. This money will be refunded at trial, but if he fails to show up in court, a warrant will be issued for his arrest, and the money will be forfeited. Bail is an extremely oldidea, as can be seen from the story of Damon and Pythias in ancient Syracuse.Pythias was accused of a crime and sentenced to death, but wished to be temporarily released in order to settle his affairs. His friend Pythias put up the ultimate form of security: himself. When Pythias returned to face his sentence, the king was so moved by this example of friendship that he freed both men.
In the modern system of bail, the security requirement is not nearly so dramatic as in the case of Damon and Pythias. Usually it is a sum in the thousandsof dollars, but nonetheless this is, like the fees of legal counsel, often beyond the ability of indigent detainees to provide. This has led to a systemof bail bonds, which are purchased from a private company for a fee much smaller than the bail requirement, usually ten percent of the total. The bail-bond company in turn presents the court with the money for security.
Although the Court in Stack v. Boyle (1951) referred to the "traditional right to freedom before conviction," there has been much debate over whether bail is in fact a right to be guaranteed in all situations. If the court judges the accused to be dangerous, or deems him a particular risk for flight("jumping bail"), it may refuse to release him, or it may set bail so high asto be prohibitive. In some cases, the accused may be released on recognizance--that is, the honor system.
In any case, where bail can be obtained, it affords the accused the opportunity, with the help of legal counsel, to prepare his defense for the pending trial. As for the trial itself, it must be "speedy," as guaranteed in the SixthAmendment, meaning that the accused cannot simply be left to languish in a jail cell for months upon months without trial. Nonetheless, the defense may choose to forestall the trial for many reasons, including the opportunity to gain further evidence.