The Rights of the Accused before Trial

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 be informed 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, and definite written statement of the essential facts constituting the offense charged."

Closely tied to this Sixth Amendment right are several rights embodied in the Fifth. The latter provides, among other things, that persons outside the armed forces must be indicted, or formally accused, by a grand jury. As its name implies, 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 a person'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 police might 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 the Miranda ruling, law enforcement officers are required to inform persons under arrest of their right to remain silent.