Constitutional Law in the Criminal Justice System: Key Insights from the 7th Edition

Constitutional Law: Overview of the Criminal Justice System

Constitutional law is central to the fairness and integrity of the criminal justice system. Our Constitution sets forth fundamental principles that safeguard individual rights and ensure that government authority is exercised in a manner that is both fair and just. Whether it’s the Due Process Clause providing for a fair trial or the 8th Amendment prohibiting cruel and unusual punishment, constitutional safeguards are designed to provide checks and balances against the power of the state. Constitutional law is the foundation on which our criminal justice system is built and therefore must be followed at all times by the courts.
From the beginning of the criminal investigation and arrest to the final stages of sentencing and appeal , constitutional law plays an important role at every stage of the criminal justice process. And while it may seem that constitutional law only plays a role during the trial phase of a criminal case, a good criminal defense attorney will ensure that constitutional principles are upheld at every stage of the criminal process. This means beginning from the basic right to counsel under the 6th Amendment and the protection from self-incrimination under the 5th Amendment to the more advanced areas of entrapment and the 4th Amendment’s protection from unreasonable searches and seizures. The best criminal defense attorneys know how to apply constitutional law to all phases of a criminal case.

What is New in the 7th Edition

The 7th edition of the book offers significant updates on critical constitutional law issues. One such issue is the impact of the Patriot Act on the Fourth Amendment’s protection against unreasonable search and seizure. The authors discuss how the FISA Amendments Authorization Act of 2008 has affected the law in this area, or as they otherwise mention, what they feel is the non-impact of the legislation.
The Fourth Amendment issue is also discussed in a section about government information-gathering/investigative activities. This section discusses in detail the United States vs. Jones case – a Supreme Court ruling that raises questions about the legality of the use of the Global Positioning System (GPS) devices to track individuals. The case revolved around the FBI using a secret warrant to place a GPS device in a suspect’s vehicle without his knowledge or consent.
In a discussion about computer search and seizure, the authors highlight two significant cases on the matter – Stanford vs. State of California (which involved a police officer searching a backpack left around a school in California where a student was present) and Noah vs. State of West Virginia (involving a laptop computer of a high school student). The authors note an important trend revealed by these cases – that decisions on these cases hinge less on computer searches alone and more on whether or not the object searched is located in a public or private place.
The final segment of this chapter of the book concerns that approach of the courts on an issue and what the authors see as a new constitutional law issue of the future in relation to the Criminal Justice System…namely the clash between the right to privacy and the right to electronic communication. The authors highlight two specific e-communication cases – Fisher vs. United States (involving usage of a public phone booth) and United States vs. Maynard (concerning the use of GPS tracking devices) – to help illustrate their point.

Landmark U.S. Supreme Court Decisions and their Implications

The 7th edition highlights such landmark decisions as Gideon v. Wainwright, the 1963 Supreme Court ruling that established the right to counsel in all criminal cases. That decision played a major role in the development of public defender programs. It also prompted the inclusion of indigent defense in the ABA’s 1968 Standards Relating to the Defense Function, which was overhauled for this edition, as were many other sections.
Miranda v. Arizona, the 1966 decision requiring that arrested persons be advised of their right to counsel, is another case spotlighted in the new edition. It created an explosion of questions about the role of the police, lawyers and courts. The new edition provides insight into the consequences of this infamous decision, including what a suspect must do to invoke his or her right to silence and under what circumstances voluntary confession statements can be used in court.
The edition treats other landmark Supreme Court decisions in detail, including Youngblood v. Arizona (1988), which fleshed out the requirements for an adequate defense involving destruction of evidence; J.E.B. v. Alabama ex rel. T.B. (1994), which required that jurors be selected without regard to gender; and Strickland v. Washington (1984), which defined the standard for an adequate defense.
Other interesting topics featured in the book include:
The 7th edition also anticipates future issues, including the potential impact of the recent groundbreaking decisions from the U.S. Supreme Court holding unconstitutional mandatory life sentences without the possibility of parole for juveniles convicted of non-homicidal offenses and finding it unconstitutional to execute the mentally disabled.

Rights of Accused: Protective Guarantees

Breathe Life Into Criminal Law And Procedure: 7th Edition is available in print and electronic form. See chapter 19, "Constitutional Law In Criminal Justice," for more information about the topic discussed below.
The U.S. Bill of Rights guarantees individual liberties to the people of the United States. By putting these guarantees into the Bill of Rights, the Founding Fathers recognized that the government might have an inclination to infringe upon individual liberties, and they sought to protect individuals by codifying their rights.
Furthermore, the Supreme Court has held that most of the protections guaranteed by the U.S. Constitution apply to the states through the Fourteenth Amendment ("No state shall make or enforce any law … which shall abridge the privileges or immunities of citizens of the United States … nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. The Fourth Amendment prohibits unreasonable search and seizures and sets out requirements for search warrants based on probable cause as determined in the mind of a neutral judge or magistrate. The Fifth Amendment sets out rules for eminent domain and grand juries; protects the right against double jeopardy, self-incrimination, and deprivation of life, liberty, or property without due process of law; and establishes rules for grand jury indictment and eminent domain . The Sixth Amendment guarantees the right to a speedy trial by an impartial jury, the right to counsel, and the right to confront witnesses. The Eighth Amendment prohibits excessive bail and fines, and cruel and unusual punishment.
The Fourth, Fifth, and Sixth Amendments especially come up in criminal cases. The Fourth protects individuals from being stopped and searched without some probable cause that a crime is being committed. Probable cause gives officers the right go in to homes and search and seize items, so it must be protected. Above all, the Fourth is the primary protection against unreasonable actions by the police in criminal cases. The Fifth is in the same vein as the Fourth. The Fifth Amendment protects individuals from self-incrimination. It stops officers from forcing them to say anything that might give away their real guilt. The Fifth guarantees that no one is going to be accused of a capital crime without being indicted by a grand jury. A grand jury indictment is needed if someone is charged by the government (not by a private individual like in civil cases). The Sixth Amendment guarantees that all criminal prosecutions must be tried by an impartial jury. The Sixth also protects the right to have a lawyer, that the trial must be held within a reasonable time, and that wherever the crime occurred, that is where the case must be tried.

Addressing Controversies (and Corrections) in the 7th Edition

The 7th edition includes discussions and consideration of several issues that have been or are being litigated within the criminal justice system, and which we have identified as areas that are challenging the ability of state courts to achieve the goal of protecting individual rights, while at the same time recognizing the public safety interests of the state.
Issuance of Arrest Warrants – in order to receive an issuance of a warrant, one must submit an affidavit that alleges "oath or affirmation" that there is probable cause to believe an offense was committed and the person arrested committed it, in addition to providing the judge or magistrate possibly with additional information that the applicant believes may be helpful, such as additional details about the offense or possible defense (such as domestic violence where the attacked also committed criminal acts), to allow the issuing magistrate to make proper determinations to protect both the accused and the public.
Waiver of Counsel – at least one examination is required (often the second or third time) on whether or not there is a basis for renewed request for counsel; Friends and family contacts do not substitute for the requirement to appoint counsel.
Seeking to Consider Novel Defense: Postconviction Strategies for Convicted Persons with Potentially Valid Claims. This chapter includes discussion of considering the necessity for waiver of right to appeal based on reasonable basis for appeal. Strickland v. Washington still governs.
Use of Excessive Force – Fourth Amendment cases provide very limited license to determine that defendants are subject to police use of lethal force (critique of Graham v. Connor should be revisited). Except in Tennessee v. Garner, the majority of cases remain suppressing or excluding evidence where Fourth Amendment rights have been violated, rather than allowing prosecution under color of state law.
Prosecutorial Misconduct – excessive sentences have been held to be affirmatively sanctionable by some courts. Use of perjured prosecutor testimony has been purposefully not revisited re perjury in recent cases.
Dispositions in Criminal Cases: A Need for Clarity – in recent years, case law has established that in order to place a guilty plea on the record, the defendant must be provided effective assistance of counsel including that the plea be voluntary in all respects, and that the defendant be competent to understand the nature of the proceedings, and his or her role. Disposition agreements are difficult, even more so when a large number of police officers operating in a given agency operate under the theory that they have a right to arrest, and admission of guilt follows every arrest. The acceptance and participation of these officers in plea deals (regardless of the facts which could lead to dismissal of charges), is based on a culture within some police departments whereby arrests are followed by acceptance of a plea deal as a means of clearing the books.

Trends and Emerging Issues

Schubert and the other editors of this volume tease out, in the 7th edition, what they describe as "emergent trends" that draw on the other constitutional law themes that Schubert has observed in his previous editions. Amongst these newer perspectives, we find: The increasing emphasis on whether sovereigns and jurisdictions are deferring adequately to the decisions and consequences of other sovereigns and jurisdictions. I suspect we will see movements like the one we saw in Michigan more recently, limiting the State’s ability to override decisions made by drug courts. We certainly also have seen a national disinterest in dealing with states that have legalized marijuana for recreational use. As indicated before, I also expect that we will see the impact of social media on constitutional law: When a crime is subject to opinion and scrutiny of the Internet, that is material that must be woven into the case to effectively ensure a thorough understanding of the case is had. Because of increased security concerns and the parallel public demand for privacy, we will no doubt see an increase in judicial intervention addressing how information in the electronic age is stored, used, accessed, and how people can object to things that are not of their choosing. I suspect that one of the biggest issues will be balancing security with expectations of individuals to have some form of privacy. We will also see the accused or convicted claim a wider range of mental infirmities as an exculpatory or mitigating factor to their crimes. This is probably an emerging trend that we may continue to see as well. I suspect jurisdictions will transfer more crimes into civil matters in which jurisdictional bars might attach that otherwise would not be there (think RICO). I suspect we may also see this more, as more crimes involve people who use marijuana, which is legal in many states now. On the other hand, I suspect there will be a push back to limiting the broad scope of what qualifies as a religious belief, since secularism has been spreading across the globe with more regularity. This push back might result in changes to what qualifies as a religious act in certain contexts . I also suspect we will see the rise of the private prison system extend across the United States, and with that, I suspect that we will see an increase in civilian respect for the accused and convicted, since the industry has a financial interest in keeping people out of prisons and not rehabilitating individuals. My suspicion is that we will see forensic scientists under increasing pressure to meet pharmaceutical standards for collection, analysis, preservation, and interpretation of evidence. Another practical trend that I suspect may emerge is the decreased acceptance of arguments relied upon by officers or agents in their interviews or interrogations with clients, because prosecutors and defense attorneys alike will have to be familiar with many aspects of the scientific process as applied to the big picture of the case in particular. I suspect not only will attorneys and judges, but the community at large, will require a greater education about the confidence intervals for the reliability of scientific conclusions, as well as the consequences of uncertainty and implications for the criminal justice system. I suspect this is especially important as more people have an increasing interest in the legal process. At a minimum, I think the issue of eyewitness identification will continue to confound many cases. As Schubert pointed out in his 6th edition, "the officer’s perception of the suspect is unreliable, the witness’s perception of the suspect is flawed, and finally the lineup or photograph album presented is likely to contaminate the witness’s recall." Problems will increase as more jurors rely upon jury instructions that simply ask whether the witness was reliable, accurate, credible, or convincing. I suspect we will see issues addressed through jury trials that rely on the teachings of Schubert. One way that will be is through a dramatic increase in torture or ill-treatment claims. Another way, which I suspect will only increase, is the collateral consequences of conviction. We have already seen defense attorneys use allegations of wrongful convictions for political purposes, and it does not look like this will slow down anytime soon.