Georgia

Your Basic Constitutional Rights in the Criminal Justice System

Authored By: Carl Vinson Institute of Government, University of Georgia
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THE CRIMINAL JUSTICE PROCESS: YOUR CONSTITUTIONAL RIGHTS

This document tells you the following:

The Constitution of the United States protects basic rights throughout the criminal justice process. It:

  • guarantees a fair process in all hearings
  • guarantees equal treatment under the law
  • provides for a pretrial hearing by a grand jury in felony cases
  • outlaws a second trial for the same crime (double jeopardy)
  • protects suspects from having to answer questions which could be used against them
  • guarantees fair proceedings when people are threatened by a loss of life, liberty, or property by the government
  • ensures compensation for people whose property is taken by the government
  • protects people from unreasonable police searches and seizures
  • sets requirements for search warrants
  • requires a speedy and public trial by an impartial jury
  • requires someone accused of a crime to be informed of the charges and evidence
  • requires that the accused be present when witnesses testify against him/her
  • provides for the accused to have a lawyer and call witnesses in defense
  • requires the courts to set reasonable and consistent bail
  • requires the courts to suit the sentence to the crime

Anyone arrested for a crime enters and is subject to the criminal justice process.

Generally, the term criminal justice process includes all proceedings and virtually everything that happens from the time a person is suspected of committing a crime, through the prosecution, until the case is over. This includes formal arrest, preliminary hearings, grand jury indictments, arraignment, and trial. If the person is convicted at trial, the criminal justice process may continue through the appeals process.

These rights are addressed in the "The Criminal Trial" document, under the Criminal Law Topic. In this document we will look at some things you need to know about your rights during the process.

As a U.S. citizen, you have constitutional protections that are very important to the way you live. The government cannot violate your constitutional rights. As citizens of Georgia, we have the protections of the U.S. Constitution, and we also have the protections of the Georgia Constitution. In many ways, they overlap. However, it is not unusual to find greater protection in the Georgia Constitution than in its federal counterpart.

The first 10 amendments to the U.S. Constitution are called the Bill of Rights. They are often referred to as the "fundamental freedoms." The Fourteenth Amendment to the Constitution requires the states, in prosecuting a suspected criminal, to abide by these rights in addition to any rights guaranteed by the state constitution. This amendment also guarantees all citizens equal protection of the laws.

Fourteenth Amendment (1868), excerpt

…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 Fourteenth Amendment requires states to

  • provide due process of law in all actions including criminal laws.
  • give equal protection to all citizens.

Equal protection must be given to all classes of people. For example, two people are charged with the same crime: employee one works for the government; employee two doesn't. The Fourteenth Amendment guarantees that no preferential treatment is given to employee one because he or she works for the government. Likewise, the treatment of people and their sentences cannot be different, strictly based on their race or age.

Regarding the criminal justice process, perhaps the most important constitutional right is the right to due process. This is guaranteed by the Fifth Amendment to the U.S. Constitution as well as by article 1, section 1, paragraph 1, of the Georgia Constitution.

You will often hear criminal defense lawyers protesting that the due process rights of their client are being ignored or violated. Frequently, persons accused of committing crimes are released on technical violations of their constitutional rights-very often, their right to due process.

Due process at its most elementary level includes the right to be heard. In other words, the accused has a right to a trial and a right to put up evidence, a right to cross-examine witnesses against him or her, a right to testify if he or she chooses, a right to make people come to court by issuing a subpoena, etc. These are very important rights and are generally classified as due process rights.

Fifth Amendment (1791)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment

  • requires a pretrial hearing by a grand jury in felony cases.
  • outlaws a second trial for the same crime (double jeopardy).
  • protects suspects from having to answer questions which could be used against them.
  • guarantees fair proceedings when people are threatened by a loss of life, liberty, or property by the government.
  • ensures compensation for people whose property is taken by the government.

The Fifth Amendment is extremely important. Not only does it guarantee all persons due process of the law, it also guarantees that no one will be subject to double jeopardy: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This means that a person who is charged with a crime, pleads "not guilty," goes on trial, and is acquitted of the crime cannot be prosecuted a second time.

The Fifth Amendment further protects a person from being forced to give testimony against him- or herself, "nor shall [any person] be compelled in any criminal case to be a witness against himself." This is what is meant when a suspect "takes the Fifth." A suspect never has to talk about a crime if that testimony, statement, or confession will expose the suspect to criminal prosecution.

In addition to these amendments, there are others that are important particularly in the criminal justice context. The Fourth Amendment deals with arrest and search and seizure (or the authority of the police to stop someone suspected of a crime and to search that person or his or her car.

Fourth Amendment (1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

The Fourth Amendment

  • protects people from unreasonable police searches and seizures.
  • sets requirements for search warrants.

The Sixth Amendment includes the rights to a speedy and public trial, to trial by jury, and to an attorney.

Sixth Amendment (1791)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment guarantees an accused person the right

  • to a speedy and public trial by an impartial jury.
  • to be informed of the charges and evidence.
  • to be present when witnesses testify against him/ her.
  • to have a lawyer and call witnesses in defense.

The Eighth Amendment addresses excessive bail. What is excessive? Would $100,000 bail be excessive in a misdemeanor case of marijuana possession? Absolutely. But, what about in a murder case? The Eighth Amendment also prohibits inflicting cruel and unusual punishment. As a result of these protections, a person cannot be sentenced too harshly. Once in jail, he or she cannot be beaten or deprived of medical attention.

Eighth Amendment (1791)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment requires judges to

  • set reasonable and consistent bail.
  • suit the sentence to the crime.

* Excerpted from An Introduction to Law in Georgia, Third Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2001). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.