The Eighth Amendment to the United States Constitution contains the prohibitions against excessive bail and fines and cruel and unusual punishment. It states:

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

The Eighth Amendment is the shortest of the sections of the Bill of Rights applicable to criminal law. It is quite simple, but has been the subject of an abundance of rulings by the United States Supreme Court due to the arguably vague nature of its prohibitions.

The Amendment prohibits the imposition of “excessive” bail or fines. This means, in practice, that the requirement of bail that may be placed on a defendant in a criminal prosecution must be limited to an amount necessary to ensure his appearance at the remainder of the criminal proceedings against him. The prohibition against excessive fines essentially requires that a defendant be fined only to the extent necessary to ensure that the Government’s interests in prosecuting the criminal defendant are met. Some of the interests put forth by the government as justifications for criminal prosecutions are: the punishment of the defendant, the prevention of any future criminal behavior by this defendant or any other individual, and rehabilitation.

Finally, the Eighth Amendment contains the prohibition against cruel and unusual punishment. This prohibition has been used most often to prohibit the methods of execution for capital (death penalty) cases. In particular, it has been used to prohibit the use of hanging and electrocution as methods of execution. Fairly regularly, cases are argued before the Supreme Court of the United States with regard to the death penalty and the prohibition against cruel and unusual punishment.

We hope you have enjoyed some brief information about the Constitution and, in particular, the Bill of Rights as applied to criminal investigations and prosecutions over the last few weeks!

The Sixth Amendment to the United States Constitution contains the most rights related to criminal defense in the Bill of Rights. It states:

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’s prohibitions and requirements all pertain to the process by which a defendant may be tried in court. These rights apply to the actual trial procedure and not the process prior to the institution of prosecution.

First, it requires that a criminal defendant’s trial be “speedy” and “public.” The requirement of a speedy trial means that a defendant may not be held in jail indefinitely without his case being brought to trial. In Louisiana, our state statutes have established that the delays for bringing a case to trial are 2 years for felony prosecutions and 1 year for misdemeanors. The requirement that a defendant’s trial be public means that, under most circumstances, the defendant’s trial must be conducted in an open courtroom that may be entered by any person who would like to view the trial. There are some limitations when evidence is protected by another statute (for example: in cases involving the abuse of minors), or when a court is attempting to limit pre-trial publicity.

Second, the Sixth Amendment requires that a defendant be tried by an impartial jury. This requirement means that a defendant has the right to ask questions of the potential jurors to make sure that they are not biased against him for some reason, whether that be because of his race or gender, or because of the nature of the crime, itself. Jury selection is an incredibly important part of any trial.

The Sixth Amendment also requires that a defendant be informed of the “nature and cause of the accusation” against him. This provision requires that a defendant be advised of the crime with which he has been charged. In Louisiana, this means that a Bill of Information or Indictment is filed which contains the name of the defendant and the charge against him, including the date(s) on which the crime was allegedly committed. Further, the defendant has a right to have that document read aloud to him at his arraignment so he can enter a plea of either guilty or not guilty to the charge.

The Sixth Amendment also requires that a criminal defendant have the right of confrontation and compulsory process. This means that a criminal defendant must be entitled to cross examine his accuser at the time of his trial. The individual who has accused the defendant of a crime must be present in court to testify under oath to the facts that lead that person to believe that the defendant committed the offense, whether that be a victim or a law enforcement officer. Further, a defendant is allowed to call witnesses to testify on his behalf. He can also issue subpoenas (compulsory process) requiring them to appear in court to testify on his behalf if they are unwilling or unable to attend court voluntarily.

Finally, the Sixth Amendment requires that a defendant have the right to counsel. This right is contained in the second half of the Miranda warnings in which an arrestee is advised that she “has the right to an attorney,” and “if she cannot afford an attorney, one will be appointed to represent” her. This right does not apply until the arrestee has been charged with a crime, meaning that the arrestee is not necessarily entitled to an attorney during an interrogation; however, if the arrestee tells the police that he does not want to speak to them until he has an attorney, the interrogation is not allowed to continue until an attorney has been appointed to or retained by the criminal defendant. This requirement also means that a criminal defendant is entitled to an attorney who can represent him at all stages of the trial proceeding, from arraignment through trial and sentencing if she is convicted.

Next week: the Eighth Amendment’s prohibitions against excessive fines and bail and cruel and unusual punishment.

The Fifth Amendment to the United States Constitution is also found in the Bill of Rights and makes multiple requirements of the government in criminal prosecutions. The Fifth Amendment provides:

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 offence 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 has the almost the largest number of rights that apply to criminal cases, second only to the Sixth Amendment, which we’ll discuss next week.

The Fifth Amendment requires that, in (most) federal prosecutions, a defendant must be indicted by a grand jury. This means that a group of people from the jurisdiction of the Court must meet and must hear the allegations brought against the defendant and decide that there is sufficient evidence to move forward with a prosecution before the defendant can be officially charged with a crime. This applies to all capital “or otherwise infamous” crimes which, in practice, means if you are being prosecuted in federal court, you have been indicted by a grand jury.

The Fifth Amendment also prohibits a defendant being tried for the same crime more than once: double jeopardy. This requirement means that once a person has been acquitted of a crime, he cannot be prosecuted for the same crime in the same jurisdiction. There are some limitations to this: if a defendant has been tried, but that trial ended in a mis-trial, or if the offense is a crime under both state and federal law, in which case the defendant can be prosecuted in both state and federal court.

The Fifth Amendment’s third prohibition is the right against self-incrimination. This right is depicted in every police procedural on television when the police advise the arrested person that she “has the right to remain silent and not answer any questions.” This prohibition also means that a criminal defendant cannot, unlike other witnesses, be compelled to testify when he is on trial. When a person “pleads the Fifth,” this is the section of the Amendment to which she is referring.

Finally, the Fifth Amendment establishes that a criminal defendant has a right to “due process.” Due Process is a very broad term that encompasses a multitude of other rights, which basically boil down to requirements that do not allow the government to put the defendant in jail and throw away the key without a trial.

Next week: the Sixth Amendment and speedy trials, impartial juries, and the confrontation clause, among others!

The Fourth Amendment to the United States Constitution is found in the Bill of Rights and, along with several others we’ll talk about over the next few weeks, provides protections for individuals against intrusions by the government. The Fourth Amendment provides:

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.

This requires that a law enforcement agency (or other government agency) that wants to search a person’s home or property must show probable cause that evidence of a crime exists within that location. Further, it says that the government may not seize a person’s property without also showing probable cause to believe that it is evidence of or proceeds from a crime. Any warrant, in order to be constitutionally valid, must also describe the place to be searched and the description must be clear, and it must describe the property, or the person in the case of an arrest warrant, to be taken or arrested.

This requirement of probable cause, along with the prohibition against unreasonable searches and seizures means that the government must show, to the satisfaction of a reviewing judge, that they have more than just a suspicion that evidence of a crime is going to be located at the location. A person also may not be arrested except upon a showing of probable cause.

The effect of this Amendment on criminal prosecutions in Louisiana can be seen in many procedures our courts follow:

In Louisiana, if a person is arrested without a warrant, a judge must review the arrest information within 72 hours (exclusive of legal holidays) to determine whether there was probable cause to effectuate that arrest. If there was, then the case may proceed. If not, then the arrestee must be released.

Defendants who believe that they or their property have been searched unlawfully or absent probable cause may file a motion to suppress the results of the search and the Supreme Court has held that if those searches were conducted without probable cause, the evidence cannot be used against the Defendant.

Check back with us next week for our favorite legal and law-related movies in celebration of Louisiana Film Prize Weekend!

Constitution Day is tomorrow, September 17. It celebrates the day in 1787 that the Constitution of the United States was ratified.

For the next month or so, we will be taking one day each week to commemorate an amendment to the US Constitution that has an impact on our daily practice of law. On September 23, we will discuss the Fourth Amendment’s prohibition against unreasonable searches and seizures and requirements that warrants issue only upon probable cause and with specific descriptions of the property to be searched and seized or the person to be arrested. (Then we’ll be taking a break here in the middle to celebrate the Louisiana Film Prize and Prize Fest Weekend on October 16 with a list of our favorite movies about the law. Viva!). On October 7 we’ll resume our regularly scheduled programming to discuss the Fifth Amendment’s requirement that a case be instituted by grand jury, its protections against double jeopardy and self-incrimination, and due process requirements. On October 14, we’ll discuss the trial rights established by the Sixth Amendment, including: the right to a speedy trial, a public trial, an impartial jury, to confront one’s accusers, and to an attorney. Finally, on October 21, we’ll discuss the Eighth Amendment’s prohibitions against excessive bail, excessive fines, and cruel and unusual punishment.

As a preview to all of that, we’d like to remind everyone of the preamble to the Constitution, the language that starts off the document that establishes and defines the powers and limitations of our government:

We the People of the United States of America, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Join us in the coming weeks as we look to those parts of the Bill of Rights that we celebrate every day in our criminal defense practice.