The Bill of Rights - Essay Example

?Enquiry Topics When the first congress met after the government was established under the constitution, legislation was introduced to add a bill of rights. Why this action was necessary so early after the government was established? Why is the Bill of Rights so important? Which of the first 10 amendments is the most important? The US Constitution document was adopted in 1787 to replace the Articles of Confederation signed by the 13 states after independence in 1783. The draft constitution needed to be ratified by at least 9 of the 13 states. The debates in the state legislatures for ratification threw up serious concerns about the absence of protection of individual rights in the constitution which could lead to the government imposing tyrannical controls over its citizens. James Madison, the principal architect of the constitution, promised that the document would be amended to include individual rights. Several key states insisted on amendments and two states, North Carolina and Rhode Island refused to ratify the constitution without such amendments (Bill of Rights Institute1, 2010). This was the reason of urgency in introducing the legislation when the first congress met. The Bill of Rights is important because it guarantees what are termed the natural or inalienable rights of people. In the US Declaration of Independence, these rights include “life, liberty and the pursuit of happiness”. The ten amendments to the constitution that make up the Bill of Rights describe elements of these natural rights and ensure that the government cannot enact any laws that contravene these rights of the people. (Bill of Rights Institute 2, 2010). Though most people would name the First Amendment that guarantees freedom of speech, religion, assembly as the most important, the Fourth Amendment which protects citizens against unreasonable search and seizure has greater importance in distinguishing the US from a totalitarian state. This amendment ensures that no search or seizure can occur without a warrant issued on the basis of probable cause. The warrant also needs to describe the place to be searched and the persons or things to be seized (Archives.gov, n.d) 2) What test is used to determine whether a police officer’s conduct constituted a “show of legal authority”? What factors are relevant in applying this test? How does the court determine when a seizure occurred? Why is it often necessary for the courts to pinpoint the exact moment a seizure occurred? By case law, a police officer is permitted to stop, interrogate and frisk a person if he has reasonable suspicion of wrong doing or to prevent the possibility of a crime being committed. Such detention or seizure without a warrant is considered to represent a “show of legal authority”. The courts recognize that such police action is in violation of the provisions of the Fourth Amendment but have balanced this against the need to give the police some discretion for effective law enforcement. A police officer is permitted to approach an individual in a public place and ask if he will answer some questions. The individual may decline to do so and that cannot be the sole grounds for detaining that person. The person so stopped may be frisked for hidden weapons if the police officer believes there is danger to his person or to others from the individual. In stopping such an individual, there must be no excess display of force such as the police officer drawing a weapon or multiple officers surrounding the person (Gorton, 1970). In various cases, the Supreme Court has defined seizure of the person to occur when a reasonable person believes that he or she is no longer free to terminate the encounter with the police and leave. In the 1991 case California v. Holdari, D., the court has held that seizure occurs when an individual is subject to physical force or a show of authority and the person yields to such force or authority (Sullivan, 2010). It is important to pinpoint the exact moment when a seizure has occurred because the courts are required to exclude consideration of any evidence collected from an unlawful seizure to ensure that the individual’s Fourth Amendment rights against illegal search and seizure are protected. 3) How is the term “search” defined today? In light of modern technology, should there be a different definition of “search”? If you feel there should be a different definition of “search”, what should it be and why? If you feel the current definition is sufficient, how do you reconcile the relative lack of privacy today considering current technology with the restrictive definition of “search”? The term “search” is defined as police examination of a person’s physical body, abode, or other area where the person would have an expectation of privacy, in order to find incriminating evidence (Yourdictionary.com). After the 9/11 attack, the Patriot Act has given wide ranging powers to the police for “surveillance” which includes human and technological monitoring of physical movements and actions of people, acquiring data from personal communications, electronic transactions, computer records or other sources (Bloss, 2007). The Fourth Amendment provisions were based on physical searches of a person or his house or property and over the years, the courts have developed sufficient case law to define when these searches and seizures are legal and the admissibility of evidence collected from such search. In the past 25 years, the computer has become an important source of information on people’s personal and business activities and computer records now form an important source of evidence in litigation. Computer data is stored not only on the hard disk of the personal computer within a person’s home or office but also on the computers and servers owned by internet and communication service providers, by banks and credit card companies and other agencies. Technology permits this computer based data to be randomly scanned by surveillance authorities to look for certain phrases or words to trigger alarms that can invite wider scrutiny. Such “searches and seizures” are not from the physical person or property of the individual and may therefore be construed as being outside the purview of the fourth amendment (Kerr, 2005). There is therefore the need to expand the present definition of “expectation of privacy” from the person or abode or property to all cyber data about the person. This cyber data also needs to be protected from unlawful search and seizure. 4) The Exclusionary Rule prevents evidence from being admitted in court if it was obtained in violation of the defendant’s rights. The intent was to deter intentional police misconduct. Considering the fact that most major cases that go though the appeals process are ultimately decided on a split decision (5-4 or 6-3) by the Supreme Court justices, does the Exclusionary Rule work? If the top 9 judges can’t agree whether evidence was lawfully obtained after months of study and debate, how do we expect law enforcement officers to make the correct choice in 10 seconds or 10 minutes? Are there more effective deterrents to this issue? The application of the Exclusionary Rule to evidence has always been contentious. Some people consider it an unnecessary impediment to law enforcement that allows criminals to escape conviction on procedural technicalities while others argue that it is an essential safeguard to enforce the Fourth Amendment. In major cases where the evidence seized during search is crucial for conviction, it is not surprising that the admissibility of the evidence is challenged. In the absence of very clear proof of the evidence having been lawfully obtained, the appeals process would focus on the interpretation of the Exclusionary Rule. By case law, the Exclusionary Rule focuses on two important tests, whether the search warrant issued by the judge was valid and whether the police acted in good faith in relying on the warrant. Case law has established that a warrant issued by the judge is valid as long as he had not “wholly abandoned his judicial role”. Evidence collected by the police, acting on the basis of even an invalid search warrant has been held to be admissible as long as there is substantial basis for the court to believe that the officer acted in good faith (Bray, 2004). The prevalence of split opinions on the Exclusionary Rule should have no impact on the conduct of the police officer in a search and seizure role for gathering evidence. He is required to obtain a search warrant by showing probable cause to a magistrate. He is required to follow the limitations of the warrant in respect of the premises to be searched and the notifications he needs to make to the person. Once he complies with these requirements in both letter and spirit, he is not called upon to make any judgments about the admissibility of the evidence. 5) What is the justification for suppressing involuntary confessions? What two elements must combine for a confession to be suppressed under the free and voluntary requirement? Explain these two elements. Give several examples of improper interrogation tactics. What factors do courts consider in deciding whether the suspect’s free will was overcome? Should we care if the confession was voluntary as long as it’s the truth? How much protection should we be giving criminal suspects? Any confession is required to pass five hurdles before it is considered admissible. The first hurdle is that a confession is invalid if it was obtained in violation of the provisions of the Fourth Amendment against unlawful search and seizure. The second hurdle is the Fifth Amendment which provides that no person shall be compelled in a criminal case to be a witness against himself. The next hurdle is the Sixth Amendment pertaining to right to counsel. The Fifth Amendment rights combined with the provisions of the Fourteenth Amendment due process clause requires the confession to be made on a free and voluntary basis. The final hurdle is called the McNabb- Mallory rule which voids any confession if there is undue delay in bringing the suspect to justice (Stevens, 2003). The onus of proving that a confession is voluntary rests on the prosecution. Courts examine two elements to determine if a confession is admissible. One element is the susceptibility of the suspect which includes his background, education, intelligence, physical and mental condition and prior experience with the system. The second element is the environment and methods used by the police in obtaining the confession. Several examples of improper interrogation tactics have been recognized in criminal case law. Extended interrogation is often used with rotating teams of policemen to intimidate the prisoner. He is prevented from communicating with friends or family. The suspect is deprived of food, water and clothing. The interrogators often use threats of injury to him or his family and promises of leniency for the suspect (Cuenhoven, 2003). It is important to ensure that a suspect has all the protection available under the constitution and the law since no criminal act has as yet been proved against him. He is required to be considered innocent until convicted of a crime. 6) What functions does the sixth amendment right to counsel serve in our adversary system of criminal justice? Why is this protection critical? What other rights does the sixth amendment bestow? Other than the right to counsel, which of these do you feel is the most important and why? In the adversary system of criminal justice the prosecution and the defense attempt to argue the case in front of a neutral judge and jury who evaluate the evidence and the arguments to arrive at a verdict. The Sixth Amendment also provides for the state to appoint a lawyer if the accused is unable to do so. An average person has little or no understanding of the law and the legal process. Even if he is innocent, he may be unable to establish his innocence due to his lack of knowledge of the legal process including rules of evidence, prior case laws both federal and state. He also needs counsel to refute the arguments of the prosecution, challenge statements of witnesses and present alternative interpretations of circumstances. This problem is particularly apparent by the fact that a disproportionate number of the 2.2 million people in US prisons are blacks and Hispanics and over 70,000 of these are juveniles (Cohen, 2013). In addition to the right to counsel, the Sixth Amendment provides for the right to a speedy and public trial by an impartial jury of the state and district where the crime has been committed. The suspect is also guaranteed the right to be informed of the charges against him, and the cause of the accusation, to be confronted by the witnesses against him and to have witnesses in his favor. The most important of these is clearly the right to a speedy trail. In a 1966 ruling, the US Supreme Court observed that “this is an important safeguard to prevent undue and oppressive incarceration prior to trail, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of the accused to defend himself” (Missouri Bar, 2006). * * * * References: 1) Archives.gov, (no date). “The Bill of Rights: A Transcription”. Retrieved from http://www.archives.gov/exhibits/charters/bill_of_rights_transcripts.html. 2) Bill of Rights Institute 1, (2010). “Constitution of the United States of America (1787)”. Retrieved from http://billofrightsinstitution.org/founding-documents/constitution/. 3) Bill of Rights Institute 2, (2010). “Americapedia: Natural Rights” Retrieved from http://billofrightsinstitution.org/resources/ educator-resources/ americapedia/ americapedia-constitution/natural-rights/ 4) Bloss, W., (2007). “Escalating Police Surveillance after 9/11: an examination of Causes and Effects”, Surveillance & Society, 2007. Retrieved from http://www.surveillance-and-society.org/articles4 (3)/escalating.pdf. 5) Bray, Z., (2004). “Appellate Review and the exclusionary rule”, Yale Law Journal, 1 March 2004. Retrieved from http://www.thefreelibrary.com/ Appellate +review+ and +the+ exclusionary+rule.-a0115345018. 6) Cohen, A., (2013). “How Americans lost the Right to Counsel: 50 years after ‘Gideon’”, The Atlantic, 13 March 2013. Retrieved from http://www.theatlantic.com/national/archive/2013/03/how-americans-lost-the-right-to-counsel-50-years-after-gideon/273433/ 7) Cuenhoven, P., (2003). “Suppressing Confessions: Involuntariness and Miranda”, SDAP, 2003. Retrieved from http://www.sdap.org/downloads/research/criminals/confessions.pdf 8) Gorton, S., (1970). “Arrest- Police Officers- Constitutional Rights of Accused Persons- Admissibility of Evidence”, AG Opinions, AGO 1970 No.2 – January 20, 1970. Retrieved from http://www.atg.wa.gov/AGOO Opinions/ Opinion.aspx? section =archive&id= 5548#. UZRvWaKSDVs 9) Kerr, O.S., (2005). “Searches and Seizures in a Digital World”, Harvard Law Review, 2005. Retrieved from http://www.harvardlawreview.org/media/pdf/kerr.pdf 10) Missouri Bar, (2006). “The right to a speedy trial”, The Civics Library of the Missouri Bar, 2006. Retrieved from http://www.members.mobar.org/civics/SpeedyTrial.htm 11) Stevens, M., (2003). “The Law of Confessions”, NCWC, 25 May 2003. Retrieved from http://www.faculty.ncwc.edu/mstevens/410/410.lect18.htm 12) Sullivan, D.G., (2010). “Continuing seizure and the Fourth Amendment: Conceptual discord and evidentiary uncertainty in United States v. Dupree”, The Villanova Law Review, 15 June 2010. Retrieved from http://www.law.villanova.edu/lawreview/wp-content/uploads/ 2011/12/VLR107.pdf 13) Yourdictionary.com. “Your Dictionary – Law”. Retrieved from http:// law. yourdictionary. com/ search/ Read More