The Rights of the Accused before Trial

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 for the accused to prove his guilt. Closely tied with this is the presumption of innocence: 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 in the 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 held illegally (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 than most 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 semblance of 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 of law 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 preceding centuries 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 first ten amendments to it, commonly known as the Bill of Rights. Modelled on the English 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 well as 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, often formed by an interpretation of the Fourteenth, further expanded the rights of the accused. The Court, and indeed the American legal system, also assumes certain rights which are stated neither in the Constitution nor in its amendments, but which are generally agreed to derive from them. Most notable among these is the requirement that guilt must be proven beyond a reasonable doubt.