Historical Overview of the Creation of the U.S. Constitution

To better appreciate how the Constitution is relevant to the U.S. criminal justice system and more specifically how it interacts with criminal law, it is essential to have a basic understanding of the origins and structure of the U.S. Constitution, especially the Bill of Rights.

There are several exceptional books that offer in-depth discussions of the historical and political events leading to the creation of the U.S. Constitution (see Further Reading). This section offers a brief overview of the historical and political factors that influenced the creation, organization, and adoption of the Constitution and eventually the Bill of Rights (Hall & Feldmeier, 2017):

• Pre-1500s: North America was originally populated with numerous Indigenous tribes and civilizations. The influence of these peoples on the creation of the Constitution and Bill of Rights was largely lost to history and not fully recognized until recently. During this time, there were numerous explorations and activities in North America by European countries with the first nonindigenous settlement being St. Augustine, Florida, settled by Spain in 1565.
• 1500s–early 1700s: European nations expanded exploration and settlement in New England and along the Atlantic Coast with permanent settlements being established by the British in Jamestown, Virginia, in 1607 and Plymouth, Massachusetts, in 1620. Governmental operations and the laws of the colonies generally adhered to the practices of the founding country, which in the case of Great Britain meant adherence to the strict rule of the Parliament and the king. Over time, the 13 colonies slowly grew to resent many of the oppressive British legal practices, including those that related to crimes (arrest, search and seizure, and trial). These harsh British practices would later become the focus of attention during the formation and adoption of the Constitution and the Bill of Rights.
• 1774: Two years prior to the signing of the Declaration of Independence, the colonies, recognizing the need for some form of central government, formed the Continental Congress. Unfortunately, this body had little if any actual legislative or enforcement power. Its main role seemed to be support for the upcoming American Revolutionary War through foreign relations and fundraising activities.
• 1776: The 13 colonies issued their joint Declaration of Independence with the American Revolutionary War quickly following.
• 1781: The Articles of Confederation were adopted, and the Congress of the Confederation was created, replacing the Continental Congress. There was still no meaningful centralized government or governing document. Each of the former colonies (now states) adopted the laws and practices they believed were appropriate.
• 1781–1783: Due largely to the military victory over the British forces at the Battle of Yorktown and the subsequent signing of the Treaty of Paris (1782-1783), independence of the colonies was achieved. After independence, each colony relied largely on its own government and laws.
• 1781–1789: The Congress of the Confederation served as the central governing body over the states. It remained weak and ineffective as a federal governing body and lacked clear authority to enact or enforce federal legal standards over the states. These weaknesses ultimately demonstrated the need to develop the Constitution.
• May–September 1787: The Constitutional Convention convened in Philadelphia and was tasked with the job of creating a centralized government governed by a federal constitution. After lengthy debates about various plans, proposals, and options (proceedings that still remain somewhat secretive as there exist no specific minutes or recorded details), and after 40 hours of drafting, a 4,440-word document was created (Hall & Feldmeier, 2017, p. 17). Thirty-nine of the 55 delegates signed the new document. Those who did not sign refused due to the lack of a bill of rights. “At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade” (The White House, n.d., para. 7). The newly created Constitution was signed on September 17, 1787, now recognized as Constitution and Citizenship Day.
• 1787–1790: From December 1787 to May 1790, all 13 states ratified the proposed Constitution. Twelve of the 13 states did so quickly; however, Rhode Island refused ratification. Ultimately, Rhode Island ratified the document in 1790 after “Congress threatened to sever the new nation’s commercial relations with Rhode Island” (Hall & Feldmeier, 2017, p. 18).
• 1791: Per the discussions at the Constitutional Convention, “it was agreed that a bill of rights would be added immediately after the Constitution was ratified” (Hall & Feldmeier, 2017, p. 21). While 12 potential amendments were proposed, only 10 (the current first 10 amendments to the Constitution) were eventually ratified in 1791.

Until very recently, there was very little if any mention or discussion of the role Indigenous nations played in the founding of the United States or the creation of the U.S. Constitution. However, over the past 50 years, this oversight has gradually undergone a review, update, and revision (EDSITEment, n.d.). As it turns out, the iconic framers of the Constitution were keenly aware of and openly recognized the many contributions of Indigenous people to the formation of the American government and to the creation of the Constitution.

New research into the Founders’ influences as they drafted the Constitution has revealed that many of the ideas that formed the cornerstones of the American government may have had their origins in Indigenous principles of government. Benjamin Franklin, responsible for negotiating treaties with the Iroquois Confederacy, remarked in 1751 that the Six Nations should serve as a model for the “ten or a Dozen English Colonies” working together. During the Constitutional Convention, John Adams suggested that the framers should study “the ancient Germans and modern Indians” because of their well-devised separation of powers within their governments. These influences came full circle as throughout the 19th and 20th centuries, Indigenous nations created their own constitutions, many of which were modeled after the U.S. Constitution (EDSITEment, n.d., para. 28).

The many noteworthy contributions seemed to have been forgotten during the 200 years of strained and often hostile relations between the various tribal nations and the federal and state governments. Recently, however, modern historians, political scientists, and Constitutional scholars have begun to rediscover the important role Indigenous peoples played in the development of the United States and to the U.S. Constitution. Sadly, it took until 1988 for the U.S. Senate to pass a resolution officially acknowledging the contributions of the Iroquois Confederacy to the development of the U.S. Constitution (A Concurrent Resolution, 1988).

Structure of the U.S. Constitution

Three Branches of the Federal Government

The U.S. Constitution consists of a preamble, seven numbered articles, and 27 ratified amendments. It establishes three separate branches of federal government: the legislative branch (Congress) that enacts federal criminal law and is found in Article I; the executive branch (the president) that approves and enforces federal criminal law and is found in Article II; and the judicial branch (the courts) that interprets federal issues relating to criminal law and is found in Article III.

The Framers of the Constitution structured the government in this way to create a system of checks and balances that would prevent one branch of government or group of individuals from becoming too powerful or exercising total control over government functions, such as making and enforcing criminal law (Hall & Feldmeier, 2017).

How the Checks and Balances Process Affect Criminal Law: An Example

The Supreme Court case of United States v. Alvarez (2012) provides an excellent overview of how the three government branches of the federal government independently exercise their Constitutional powers over criminal offenses.

• The legislative branch: Congress passed the Stolen Valor Act of 2005, making it a crime for an individual to misrepresent that they have received high military honors.
• The executive branch: Through the various federal law enforcement agencies, such as the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ), those individuals found in violation of the law were arrested and subsequently prosecuted.
• The judicial branch: In 2012, the U.S. Supreme Court ruled in the Alvarez case that the law was unconstitutional because it infringed on the right to free speech protected by the First Amendment (U.S. Const. amend. I). However, in its decision, the Court offered guidance as to how Congress could “cure” the Constitutional defect by amending the law and criminalizing an act, such as fraud, not just the speech itself. “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say, offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment” (United States v. Alvarez, 2012, p. 723).
• The legislative branch: Less than a year after Alvarez was decided, Congress responded with the Stolen Valor Act of 2013, which corrected the constitutionally defective problems of the original 2005 legislation. Following the example provided by the Court, Congress revised the law to address situations where the misrepresentation regarding military honors involved attempts to fraudulently obtain goods or services. Thus, the revised legislation continued the ban on making false claims of military honors under circumstances not protected by the First Amendment (U.S. Const. amend. I).

State Constitutions

A complete understanding of the relationship between constitutional law and criminal law requires a brief overview of the relationship between the U.S. Constitution and the constitutions of the various states. While there are many similarities between the format and content of the U.S. Constitution and state constitutions, there are some significant differences. Generally, the U.S. Constitution provides individuals with basic or minimum protections. State constitutions, however, can and often do provide individuals with additional or more protective rights.

Similarities and Differences between the U.S. Constitution and State Constitutions

The best example of the concept that states can provide greater rights relates to the authority of law enforcement officers to control passengers of vehicles that have been lawfully stopped for a traffic violation. In a series of decisions dating back to the case of Maryland v. Wilson (1997), the U.S. Supreme Court, as well as several federal circuit courts, have interpreted the “unreasonable seizure” aspect of the Fourth Amendment (U.S. Const. amend. IV) to mean that it is not unreasonable for a law enforcement officer to order a passenger out of a vehicle, ask them for identification, and even make the passenger stand by and not leave the scene of the traffic stop. Most recently, in the case of Arizona v. Johnson (2009), the U.S. Supreme Court reaffirmed that notion, holding that a reasonable passenger would understand that during the time a car is lawfully stopped, they are not free to terminate the encounter with the police and move about at will.

However, the courts in Washington State, citing Article I, Section 7 of the Washington Constitution, have come to quite a different conclusion regarding passengers’ rights during a traffic stop. In the case of State v. Rankin (2004), the Washington Supreme Court, citing Article I, Section  7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law) held that this provision of the state constitution provided far more protection from governmental interference with an individual’s liberty than the Fourth Amendment (U.S. Const. amend. IV). The court held that a passenger may not be asked for identification during a traffic stop and that a passenger is free to move around or even leave the scene of the traffic stop unless a law enforcement officer has some independent basis to support the request for identification or to restrict the movement of the passenger.

Examples of state constitutions

Explore examples of state constitutions for all U.S. states, and for American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands.

Relationship of Constitutional Law to Criminal Law

While the U.S. Constitution contains myriad rights and protections, the Bill of Rights (Amendments 1–10), the Eighth Amendment (U.S. Const. amend. VIII), and the Fourteenth Amendment (U.S. Const. amend. XIV) are the most relevant to the enactment, investigation, enforcement, and prosecution of criminal law (see Table 5.2). The two key principles in the relationship between the Constitution and criminal law are: (a) substantive criminal law, efforts to enact legislation that attempts to criminalize any right protected by the Constitution will be declared unconstitutional and unenforceable; and( b) procedural criminal law, evidence obtained in violation of the requirements and prohibitions found in the Constitution is inadmissible against a defendant in a criminal trial (known as the exclusionary rule).

The definition of the exclusionary rule is:

1. Evidence. Any rule that excludes or suppresses evidence that does not satisfy a minimum standard of probative value <despite many exceptions, hearsay has long been inadmissible under an exclusionary rule>. 2. A rule that excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights<in accordance with the exclusionary rule, the court did not admit the drugs into evidence because they had been obtained during a warrantless search of the defendant’s home>. (Thomson/West, 2000, p. 249)

To quickly browse annotations and explanations for the U.S. Constitution, visit the Constitution Annotated site.

First Amendment

The First Amendment (U.S. Const. amend. I) is relatively short—only 45 words. However, it contains many significant rights: religion, speech, press, peaceful assembly, petition the government. The primary protections in the First Amendment relevant to criminal law involve the rights relating to speech and peaceful assembly.

• Speech: Both state and federal courts have decided numerous cases defining and interpreting what freedom of speech means and what speech is protected or receives less protection. With respect to criminal law, it is important to focus on those court decisions that have determined which speech receives little or no protection under the First Amendment. Those categories of speech do not enjoy Constitutional protection and can therefore be criminalized. It is also important to understand that the concept of speech includes words and in some cases actions or conduct (see United States v. Alvarez, 2012). Currently, the five categories of speech receiving little or no Constitutional protection include: (a) child pornography; (b) defamation (making false statements that adversely affect someone’s reputation or image); (3) fighting words (including harassment, threats, offensive, and hate speech); (d) obscenity; and (e) commercial speech (Administrative Office of the U.S. Courts, n.d.-b).

Examples of Washington State criminal offenses that involve speech not protected by the Constitution are pornography and obscenity: Promoting Pornography, Wash. Rev. Code § 9.68.140 (1982); fighting words: Threats Against Governor, Wash. Rev. Code § 9A.36.090 (1982); and commercial speech: False, Misleading or Deceptive Advertising, Wash. Rev. Code § 9.04.050 (1961).

• Peaceful Assembly: The key part of this provision of the First Amendment (U.S. Const. amend. I) is the word “peaceably.” Courts have consistently upheld certain restrictions regarding what groups of people can do and where they can gather. Criminal offenses that regulate the time, place, or manner of public gatherings—and not the content or cause of the actions—will be upheld as being constitutional.

Examples of Washington State criminal offenses that involve crowds and assembly actions not protected by the U.S. Constitution are Failure to Disperse: Wash. Rev. Code § 9A.84.020 (1975); and Disorderly Conduct: Wash. Rev. Code § 9A.84.030 (1975).

Fourth Amendment

The drafting and adoption of the Fourth Amendment (U.S. Const. amend. IV) as part of the Bill of Rights was an effort to strike a balance between the needs of the government in investigating and prosecuting crimes and the privacy concerns of individuals. The need for such protections stemmed from the historical abuse and bad practices that British officials in the American Colonies engaged in with respect to search and seizure activities. (The Historian, 2023).

The Fourth Amendment consists of two distinct sections. The first section reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (U.S. Const. amend. IV). This section codifies the principle that individuals have a constitutionally protected and fundamental right to privacy. As set out in Katz v. United States (1967), the test as to when Fourth Amendment protections from governmental interference apply is whether “a person has a constitutionally protected reasonable expectation of privacy” (Katz v. United States, p. 360) in the area to be searched.

Whether a particular type of search is considered reasonable in the eyes of the law is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side are legitimate government interests, such as public safety. (Administrative Office of the U.S. Courts, n.d.-c, para. 1) Not all searches and seizures are prohibited; only those determined to be unreasonable are unconstitutional. Consistent with the Katz decision (Katz v. United States (1967)), when an individual has no reasonable expectation of privacy there can be no Fourth Amendment (U.S. Const. amend. IV) protection from government interference.

The second section of the Fourth Amendment reads as follows: “No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (U.S. Const. amend. IV). This section sets out the following procedural and administrative requirements in order to obtain and execute a constitutionally valid search warrant:

• Probable cause: a reasonable belief based on specific articulable facts that evidence related to a crime will be found in the place to be searched
• Supported by oath or affirmation: oath or affirmation required by person attesting to the supporting facts in the affidavit
• Particular description: describing the place to be searched and the items to be seized in a way that a reasonable person could identify the location involved and the items to be seized

In addition to the requirements specifically set out in the Fourth Amendment (U.S. Const. amend. IV), the U.S. Supreme Court has consistently held that search warrants must be issued by neutral and detached officials. “Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search” (Shadwick v. City of Tampa, 1972, p. 350).

There are exceptions to Fourth Amendment Protections. Although the Fourth Amendment (U.S. Const. amend. IV) offers individuals a broad “blanket” of Constitutional protection, courts have interpreted the “unreasonable” aspect of the amendment to mean that there are certain factual settings in which government officials may legally search and in some cases seize without probable cause or a warrant. Here are some examples of settings where searches and seizures may occur without requiring probable cause or a search warrant:

1) Open fields: There is no reasonable expectation of privacy in property that is not part of the curtilage (land adjacent to a dwelling or frequently used building). Example: While a frequently used barn on a 10-acre lot would require a search warrant, the unfenced unused land several miles from a house would not.

2) Exigent circumstances: Life-threatening or emergency situations involving an imminent threat to persons or property or the destruction of evidence do not require probable cause or a search warrant. Example: Police officers who hear someone shouting “Help, I’ve been shot!” coming from an apartment may enter the apartment without a search warrant for the purpose of safety and security.

3) Incident to a valid arrest: Where someone has been lawfully arrested, they may be searched without the need for a search warrant or additional probable cause.

4) Plain view: Where an officer is lawfully present, items that can be readily identified as subject to seizure (marijuana in some jurisdictions) may be seized. Example: Officer standing outside a truck looking into the open bed can legally search and seize items.

5) Consent: When consent is freely and voluntarily given by someone with legal authority to do so, a search warrant or probable cause is unnecessary.

6) Automobile searches: At the federal level, if an officer has probable cause to search a vehicle located in a public place, there is no need to obtain a search warrant. However, many states require officers to have probable cause and obtain a search warrant to search a vehicle.

7) Stop and frisk (Terry stop): Where a police officer has a reasonable suspicion that a crime has been committed, a reasonable detention of an individual may take place for the sole purpose of conducting an investigation; should the officer also have a reasonable fear of personal safety or the safety of others, the officer may engage in a physical pat down of the outer garments of the person detained for weapons (Terry v. Ohio, 1968).

Fifth Amendment

The Fifth Amendment (U.S. Const. amend. V) contains five specific provisions addressing a variety of constitutionally protected rights. These rights are as follows:

1) Grand Jury: In federal criminal proceedings and in some state criminal proceedings, a defendant cannot be tried unless they have been indicted by a grand jury. See Wash. Rev. Code § 10.27.150 (1971) for an overview of how a grand jury operates in Washington State.

2) Double jeopardy: An individual may not be tried twice by the same jurisdiction for the same criminal offense. Trials that do not conclude with a verdict (i.e., acquittal or conviction) are deemed to be a mistrial, and the defendant may be retried. Also, some criminal offenses, such as bank robbery and drug trafficking, violate both federal and state law. Accordingly, a defendant can be tried in each of those jurisdictions for committing a single offense as these are two different jurisdictions.

3) Self-incrimination: A defendant may not be compelled to offer testimonial evidence against themselves. Further, all statements given by a defendant must be given intelligently, freely, and voluntarily. See Miranda v. Arizona (1966).

4) Due Process: All aspects of a criminal investigation and trial must be conducted in a fundamentally fair way in full compliance with all applicable laws and regulations to provide a defendant with a meaningful protection of rights. This fairness provision operates to ensure that all investigative and trial techniques and processes, even those not specifically mentioned in the Constitution, are not biased or involve coercion. Examples of these processes include identification practices, interrogation techniques, and language comprehension requirements.

5) Deprivation of Property: The Supreme Court has held that federal, state, and municipal governments can exercise the power of eminent domain to take private property for public use, including roads, parks, and utility rights of way, as long as just compensation is paid to the property owner. See Kelo v. City of New London (2005).

Sixth Amendment

The Sixth Amendment (U.S. Const. amend. VI) contains six specific provisions addressing a variety of constitutionally protected rights. These rights are as follows:

1. Speedy Trial: While there is no specific time frame mentioned in the Constitution for initiating trial proceedings against a defendant, many jurisdictions have adopted statutes or court rules with specific deadlines and time frames that must be satisfied; if not, a defendant is entitled to have the criminal charges dismissed. See Washington State’s Superior Court Criminal Rules for “Time for Trial” (Wash. Sup. Ct. R. 3.3). In Barker v. Wingo (1972), when reviewing a five-year delay in a trial for compliance with the Sixth Amendment (U.S. Const. amend. VI), the Supreme Court noted “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed” (p. 530). The Court then went on to identify and discuss the various factors that might affect a final determination as to whether the speedy trial provision of the Sixth Amendment was satisfied.

2. Public Trial: There are several reasons underlying the Constitutional requirement that criminal proceedings be open and accessible to the public: public oversight of government operations; the free and open exchange of information; the appearance of trust, integrity, and transparency; and the dissemination and “free flow” of government treatment of its citizens. In keeping with the concept of protecting youthful offenders from adverse publicity, juvenile proceedings are generally not open to the public. However, there are some circumstances where a judge may close a trial to the public, such as national security, protecting the identity of a witness, or ensuring the jurors’ safety. The trial judge decides on the open or closed status of a criminal trial after a presentation of evidence by both sides.

3. Impartial Jury: Contrary to popular belief, the Sixth Amendment (U.S. Const. amend. VI) does not require that a criminal defendant be provided a jury of their peers. The language in the Sixth Amendment is “an impartial jury.” The generally accepted standard is that a jury is impartial if it can render a verdict based solely on the evidence and the law. Through voir dire, the process of questioning potential jurors, attorneys for both sides have the opportunity to discover any bias, prejudice, or motive a juror might have and can ask the judge to remove a juror whose response seems to disclose a lack of impartiality. This is known as a challenge for cause. Further, each side can remove jurors (each jurisdiction decides how many) for no cause, which is referred to as a peremptory challenge. However, potential jurors may not be excluded based on impermissible characteristics, such as race, gender, or religion (Batson v. Kentucky, 1986). There is no Constitutional right to a jury trial if the maximum possible period of confinement is fewer than six months (Baldwin v. New York, 1970).

4. Informed of Charges: The full and complete notice of the specific charges against a defendant is critical in providing the defendant with due process and the opportunity to present a meaningful defense. Notice of the specifics of pending charges, including the specific statute violated, is usually part of the arraignment process. Should a defendant not be satisfied with the notice the government provides, a motion can be made requesting that the trial judge order the government to provide adequate notice. Should additional charges be added after a defendant has been arraigned, the defendant must be re-arraigned or the added charges are impermissible. As noted in Cole v. Arkansas (1948):

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. (p. 201)

5. Confront Witnesses: “Confront” as used in this amendment generally means that a defendant in a criminal trial has a Constitutional right to question and cross-examine all witnesses providing testimony as part of the trial proceedings. The remedy for violation of this right can be that some or all of the testimony is stricken from the record; in some cases, the trial judge can declare a mistrial and order a new trial. In extremely rare instances (e.g., for the safety of a witness or to prevent emotional trauma to a child), the witness may be isolated outside the courtroom and the interaction with the witness is then conducted by electronic means.

6. Right to Counsel: Although the concept of right to counsel seems very simple on its face, it has taken a number of U.S. Supreme Court cases dating back to the 1930s to resolve what that right means in different settings. Below is a chronological listing of the most important right to counsel Supreme Court cases and how each decision refined the exact meaning of the Sixth Amendment’s protections (U.S. Const. amend. VI):

• Powell v. Alabama (1932): Applying the due process provision of the Fifth Amendment (U.S. Const. amend. V) rather than the Sixth Amendment (U.S. Const. amend. VI), the Court held that in capital murder cases where defendants could not afford an attorney or defend themselves, the trial court must appoint an attorney to represent the defendant.
• Johnson v. Zerbst (1938): Applying the Sixth Amendment (U.S. Const. amend. VI), the Court held that the right to counsel applied to all federal prosecutions and that any waiver of this right must be made by a competent defendant.
• Hamilton v. Alabama (1961): In holding that the Sixth Amendment’s right to counsel (U.S. Const. amend. VI) “attaches” in criminal justice proceedings at the “critical stage” (at p. 54) of the proceedings, the Court held that the Fourteenth Amendment (U.S. Const. amend. XIV) was violated when a defendant was not provided an attorney at the time of arraignment.
• In re Gault (1967): Applying the due process clause of the Fourteenth Amendment (U.S. Const. amend. XIV), the Court held that juveniles are entitled to many of the fundamental rights found in the Bill of Rights (remain silent, notification of charges, confront witnesses), including the Sixth Amendment’s right to counsel (U.S. Const. amend. VI). Further, in many state jurisdictions, juveniles are statutorily provided many attorney-related rights not applicable or available to adults. See Wash. Rev. Code § 13.40.740 (2021).
• Gideon v. Wainwright (1972): The Court applied the Sixth Amendment (U.S. Const. amend. VI) and held that the right to counsel applied in all felony proceedings.
• Argersinger v. Hamlin (1972): In a unanimous decision, the Court held that under the Sixth Amendment (U.S. Const. amend. VI) and the Fourteenth Amendment (U.S. Const. amend. XIV), the right to counsel applied to all cases where there was the possibility that the defendant could be sentenced to a jail term.
• Brewer v. Williams (1977): The Court held that a defendant must intelligently, knowingly, and voluntarily waive fundamental Constitutional rights, such as the right to remain silent (Fifth Amendment, U.S. Const. amend. V) and the right to counsel (Sixth Amendment, U.S. Const. amend. VI).
• Scott v. Illinois (1979): The Court clarified the 1972 Argersinger case and held that it is an actual sentence of imprisonment, not the possibility of imprisonment, that triggers the Sixth Amendment’s right to counsel (U.S. Const. amend. VI). Said another way, if the criminal offense committed does not allow for a sentence of imprisonment (such as traffic offenses) or the government represents on the record that imprisonment will not be pursued as a sentencing option if the defendant is convicted, then a defendant does not have a Sixth Amendment right to counsel.
• McKaskle v. Wiggins (1984): Where a defendant has expressed a valid waiver of the right to counsel and has complied with the standards imposed in the 1977 Brewer case, a trial judge may appoint a “standby counsel” who participates in the trial and is prepared to assist the defendant if requested.
• Alabama v. Shelton (2002): The Court extended the holding of the Argersinger case to mean that even in cases where a sentence involving the possibility of confinement was suspended, the right to counsel applies.
• Iowa v. Tovar (2004): The Court held that where a defendant waived the Sixth Amendment right to counsel (U.S. Const. amend. VI), the trial judge was not required to give a warning regarding the risks of this decision.
• Indiana v. Edwards (2008): The Court held that in cases where a defendant is competent to stand trial but is found to have serious mental issues that might affect self-representation, a state is permitted to require the trial judge to appoint counsel to represent the defendant.

Further, for the Sixth Amendment’s right to counsel (U.S. Const. amend. VI) to be meaningful, the Supreme Court has insisted that a criminal defendant be provided effective assistance of counsel. The two-part test for making that determination was set out in Strickland v. Washington (1984). First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning at the level guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (p. 687)

Eighth Amendment

The provisions of the Eighth Amendment (U.S. Const. amend. VIII) most relevant to the criminal justice system are: (a) excessive bail shall not be required; (b) excessive fines shall not be imposed; (c) cruel and unusual punishments shall not be inflicted. See Section 5.4 for a discussion of recent developments relating to bail.

• Bail: Contrary to popular belief, there is no Eighth Amendment right to bail (U.S. Const. amend. VIII). The right found in the Eighth Amendment is that excessive bail is prohibited. The singular issue in reviewing bail is whether the bail imposed is excessive. “If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved” (Stack v. Boyle, 1951, p. 6).
• Excessive Fines: In the case of United States v. Bajakajian (1998), the U.S. Supreme Court clarified how this particular right was to be interpreted. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish” (p. 334 ). In holding the fine in Bajakajian to be violative of the Eighth Amendment (U.S. Const. amend. VIII), the Court held that the fine was “grossly disproportionate to the gravity of the defendant’s offense” (p. 334). In determining proportionality, the Court considered the following factors: a comparison of the fine amount to the proven offense, the particular facts of the case, the character of the defendant, and the harm caused by the offense.
• Cruel and Unusual Punishment: This provision of the Eighth amendment (U.S. Const. amend. VIII) does not generally relate to criminal law issues. Cases involving this provision are typically civil cases filed by inmates in jails or prisons regarding living conditions, such as overcrowding, food or limited activities.

Fourteenth Amendment

There are two main clauses in the Fourteenth Amendment (U.S. Const. amend XIV): the due process clause and the equal protection clause.  The due process clause is defined as follows:

Defined: Constitutional law. The constitutional provision that prohibits the government from unfairly or arbitrarily depriving a person of life, liberty, or property. There are two due process clauses in the U.S. Constitution, one in the 5th Amendment applying to the federal government and one in the 14th Amendment applying to the states. The 5th Amendment’s due process clause also applies to the states under the incorporation doctrine. (Thomson/West, 2000, pp. 216–217)

For a list of U.S. Supreme Court cases relating to due process, see Due Process Supreme Court Cases.

In addition to the specific rights set out in the First, Fourth, Fifth, Sixth and Eighth amendments, the courts have interpreted the due process clause of the Fourteenth Amendment as mandating that all processes involved in a criminal investigation or trial be conducted in such a way as to provide a criminal defendant with a “safety net” of fundamental fairness (U.S. Const. amend. XIV). Specific examples of this fundamental fairness doctrine can be found in cases related to confessions and identification practices. With regard to confessions, the U.S. Supreme Court has consistently held for over 100 years that to be admissible, all statements and confessions given by a defendant must be “free and voluntary” (Bram v. United States, 1897). With regard to identification practices, courts have held that the due process clause dictates that an accused should be afforded protections against processes that are “so necessarily suggestive and conductive to irreparable mistaken identification” (Stovall v. Denno, 1967, p. 293). Said another way, all identification practices relating to criminal defendants must be both reliable and minimally suggestive (Neil v. Biggers, 1972). As noted in the Neil case, the test to be applied to identification procedures includes factors that should be considered in evaluating the likelihood of misidentification: the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation (pp. 199–200).

The equal protection clause is defined as follows:

Defined: “Constitutional Law. The 14th Amendment provision requiring the states to give similarly situated persons or classes similar treatment under the law” (Thomson Reuters, 2021, p. 305).

For a discussion of how the Equal Protection Clause provides Constitutional protection in the context of criminal procedure and criminal law settings, see the discussion of Racial Profiling in Section 5.3. For a list of U.S. Supreme Court cases relating to the equal protection clause, see Equal Protection Supreme Court Cases.