Rights of the Accused

The best way to understand what rights our criminal justice system accords the accused is to investigate the process by which accused persons are brought into court and their alleged culpability adjudicated. The criminal justice process exists to justify society’s imposition of punishment upon an individual. In a free and just society, stripping an individual of her liberty— that is, punishing through imprisonment—must be legitimated by a legal process that is fair and accurate. Sometimes promoting fairness harmonizes with the pursuit of accuracy in adjudication; sometimes not. For example, ensuring free and adequate legal representation for indigent criminal defendants strikes us as fair; but it also serves society’s irrevocable commitment to ensuring that no innocent person is convicted, a risk that is heightened when an accused person must undergo a trial process without, as the Supreme Court put it in Gideon v. Wainwright (1963), the ‘‘guiding hand of counsel.’’ Conversely, while it might be ‘‘fair’’ to suppress relevant evidence at a criminal trial because the police violated the constitutional rights of the accused, that judicial remedy hinders the system’s pursuit of adjudicatory accuracy.

Complicating things further, we demand not just fairness and accuracy, but also a certain level of efficiency in the criminal justice process. What kind of efficiency? We want law enforcement to prevent crime, and to the extent that is not possible, we want criminals swiftly apprehended and swiftly punished. We want the criminal justice process to incapacitate criminals and deter would-be offenders. Important as this objective is, single-minded attention to efficiency would lead us to adopt what might be called an ‘‘administrative tribunal system of justice,’’ where the focus is exclusively on fact-finding, and those rights of the accused that impede that goal would be jettisoned. Even accuracy could be sacrificed in an efficiency-obsessed system, since efficiency may well require that we tolerate higher risks of error in the adjudicatory process than we currently do.

No criminal justice system pursues one objective and ignores the others. Balancing the competing objectives, through evaluation of society’s values and needs, is a perennial feature of the administration of justice. Fairness, accuracy, and efficiency are elusive objectives that compete for our concern. And what rights we accord the accused exist within this triangle of concerns.

No adjudicatory process could command our allegiance if it did not pursue the very important goal of discovering the truth. No doubt, many of the rights of the accused promote this goal. As noted above, anyone facing felony charges (typically a criminal accusation that brings with it the possibility of at least six months incarceration) is entitled to have a lawyer, free of charge if the accused is too poor to pay counsel’s fee (which is true of most criminal defendants). The accused may even be entitled to the services of an investigator and necessary experts, also paid for by the taxpayers, so as to mount a challenge to the prosecution’s case. The accused may demand of the prosecution that it disclose any information it has that might be favorable to the defense, and any failure by the prosecution to disclose favorable evidence that undermines confidence in the outcome would require a new trial. At the trial itself, defense counsel must be given the opportunity to cross-examine the prosecution witnesses. Cross-examination has been called the ‘‘greatest engine of truth ever devised.’’ Guaranteed by the Sixth Amendment to the U.S. Constitution, the right of cross-examination exists in tandem with another truth-promoting right—the right of compulsory process, which empowers the accused to subpoena necessary witnesses. The right to confront witnesses and the right to compulsory process are species of the larger right to present a defense, including the right of the accused to offer his own testimony.

The goal of discovering the truth is part of the overarching objective that the criminal-justice process render accurate results—that is, convicting the guilty and exonerating the innocent. But the notion of the ‘‘truth’’ is too slippery on which to build an elaborate adjudicatory process. Sometimes according an accused the right to counsel and the right to have counsel vigorously attack the prosecution’s case through cross-examination and through motions to suppress reliable and competent evidence undermines the pursuit of truth. But our commitment to fairness, a commitment to an adjudicatory process that accords the accused the right to participate in the proceedings in a way that permits such attacks upon the prosecution’s case, demands that we not allow ourselves to be overwhelmed by the idea that uncovering the truth should guide every decision regarding process. The fundamental precept that each individual defendant has dignity and may not be treated as a means to an end that might seem laudable or necessary requires that the adjudicatory process include the irrevocable right to be heard and to participate in the trial proceedings.

But leaving aside these considerations of fairness and dignity, often we can never know the ‘‘truth,’’ only versions of the truth as told by witnesses who have their own infirmities and biases that undoubtedly affect their reliability and credibility. The accuracy objective demands a societal judgment about risk: What risks are we willing to tolerate of convicting the innocent or exonerating the guilty? Because our society is committed to the proposition that it is better to exonerate the guilty than convict the innocent—on a ten-to-one ratio, the famous maxim goes—the accused has certain rights that reflect this risk aversion. Most notable are the cluster of rights centering on the prosecution’s Burden of Proof.The accused has the right to be presumed innocent, unless and until the prosecution can prove guilt through competent evidence. The presumption of innocence means that the factfinder (typically the jury) must evaluate the prosecution’s case from the point of view that the accused is, in fact, innocent. The fact-finder must be persuaded of the accused’s guilt as opposed to having a preexisting suspicion of guilt ratified by the proof. Not only that, the prosecution must persuade the factfinder with proof so compelling that there exists no reasonable doubt as to the accused’s guilt. Even if the jury thinks the accused is probably guilty, the accused is entitled to an acquittal because the prosecution has failed to prove guilt beyond a reasonable doubt. Moreover, the prosecution may not satisfy its Burden of Proof by insisting on questioning the accused or by commenting on the accused’s silence as indicative of guilt. The accused has a Fifth Amendment right to silence that extends beyond the interrogation room of a police precinct, but into the courthouse as well. That means neither the prosecution nor the judge may compel the accused to testify, and the accused may not suffer any prejudice by the decision not to testify or otherwise remain silent about the accusation. Undoubtedly, this rigorous Burden of Proof has sometimes led to acquittals of the factually guilty. But it would be misleading to say that the system has failed in its goal of promoting accuracy in the adjudicatory process. Accuracy in this context takes into account society’s values about the power of government to strip individuals of their liberty. Acquitting the factually guilty because of a bona fide reasonable doubt in the accusations is an accurate result because we have decided that the risks of convicting the innocent are too great to lower that Burden of Proof.

Other rights reinforce this notion of risk aversion. The accused has a Sixth Amendment right to be tried by a jury for any offense that could lead to imprisonment of at least six months. Empaneling a jury is time consuming and costly. Sometimes, in complex whitecollar crime cases, jurors are less equipped to handle the fact-finding task than a judge or a panel of experts. But community participation in the adjudicatory process, plus the demands for unanimity or nearunanimity in the verdict, protect the accused against government overreaching. In fact, the accused’s right to certain pretrial screening procedures reflect our ‘‘accuracy’’ objective. The police may not under the Fourth Amendment take an individual into custody without probable cause of criminality, and under the Fifth Amendment that probable cause may not be built upon investigatory procedures that produce involuntarily rendered incriminating confessions. Whatever charges that are brought against an accused must be screened either by a magistrate in a preliminary hearing or by a grand jury consisting of members of the community.

Similarly, the right against double jeopardy can be understood in part as a safeguard against erroneous convictions. Subjecting an individual to multiple prosecutions for the same offense increases the chances of a conviction. In some instances a conviction in a second or third trial may be the ‘‘accurate’’ result insofar as the accused is factually guilty and secured an ‘‘erroneous’’ acquittal in the first proceeding. But the risk exists that an innocent defendant is factually innocent but cannot defeat the prosecution’s quest for a conviction in a subsequent trial. In that sense, the right against being put twice in jeopardy reflects yet again our aversion to the risk of convicting the innocent.

DANIEL R. WILLIAMS

References and Further Reading

• Amar, Akhil Reed, The Future of Constitutional Criminal Procedure, American Criminal Law Review 33 (1996): 1123.
• Dressler, Joshua. Understanding Criminal Procedure. 3rd ed. Newark, NJ: LexisNexis, 2002.
• Duff, R.A. Trials and Punishments. Cambridge; New York: New York University Press, 1986.
• Packer, Herbert. The Limits of the Criminal Sanction. Stanford, NJ: Stanford University Press, 1968.
• Uviller, H. Richard. The Tilted Playing Field: Is Criminal Justice Unfair? New Haven, NJ: Yale University Press, 1999.

Cases and Statutes Cited

• Gideon v. Wainwright, 372 U.S. 335 (1963)