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John Jay College of Criminal Justice


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Problems of Constitutional Development




Topic 1: The Judicial Branch

  • Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

    • The U.S. Supreme Court case Marbury v. Madison (1803) established the principle of judicial reviewthe power of the federal courts to declare legislative and executive acts unconstitutional. The unanimous opinion was written by Chief Justice John Marshall.

    • President John Adams named William Marbury as one of forty-two justices of the peace on March 2, 1801. The Senate confirmed the nominations the following day, March 3, which was Adams's last full day in office. However, acting Secretary of State John Marshall failed to deliver four of the commissions, including Marbury’s. When Thomas Jefferson took office on March 4, he ordered that the four remaining commissions be withheld. Marbury sued the new secretary of state, James Madison, in order to obtain his commission. The Supreme Court issued its opinion on February 24, 1803.

Topic 2: Federalism

  • McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819)

    • States cannot interfere with the federal government when it uses its implied powers under the Necessary and Proper Clause to further its express constitutional powers. 

    • The American state of Maryland had attempted to impede an operation by the Second Bank of the United States through a tax on all notes of banks not chartered in Maryland. Though the law was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the Court’s opinion as having specifically targeted the Bank of the United States.

    • The Court invoked the “Necessary and Proper Clause” of the US Constitution, which allows the federal government to pass laws not expressly provided for in the Constitution’s list of express powers if the laws are useful to further the express powers of Congress under the Constitution. The US Supreme Court first established that the “Necessary and Proper” Clause of the US Constitution gives the US federal government certain implied powers that are not explicitly stated in the Constitution. The Supreme Court also held that the American federal government is supreme over the States, granting the States limited ability to interfere with federal issues. The Court rejected Maryland’s narrow interpretation that the word “necessary” in the clause meant that Congress could only pass laws that were utterly essential in the execution of its enumerated powers. The Court rejected this argument on the basis that many of the powers under the Constitution would be useless if only laws deemed “necessary” could be passed. Although the Constitution does not specifically give Congress the power to establish a bank, it delegates the ability to tax and spend. Since a bank is a proper and suitable instrument to assist the operations of the government in the collection and disbursement of the revenue, and federal laws have supremacy over state laws, Maryland had no power to interfere with the bank’s operation by taxing it.


Equal Protection and Due Process Rights

  • Slavery in America

    • Dred Scott v. Sandford60 U.S. 393 (1856)

      • In Dred Scott v. Sandford (argued 1856 -- decided 1857), the Supreme Court ruled that Americans of African descent, whether free or slave, were not American citizens and could not sue in federal court. The Court also ruled that Congress lacked power to ban slavery in the U.S. territories.

        • ​Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in Missouri court for his freedom, claiming that his residence in free territory made him a free man. After losing, Scott brought a new suit in federal court. Scott's master maintained that no “negro” or descendant of slaves could be a citizen in the sense of Article III of the Constitution.

        • Was Dred Scott free or slave? Held portions of the Missouri Compromise unconstitutional in violation of the Fifth Amendment, treating Scott as property, not as a person. McLeanThe majority held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds.

  • 'Separate but Equal'

    • ​​Plessy v. Ferguson,163 U.S. 537 (1896) 

      • Later overruled by Brown v. Board of Education (1954), this decision embraced the now-discredited idea that “separate but equal” treatment for whites and African-Americans is permissible under the Fourteenth Amendment. This was a landmark 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. The case stemmed from an 1892 incident in which African American train passenger Homer Plessy refused to sit in a car for blacks. Rejecting Plessy’s argument that his constitutional rights were violated, the Supreme Court ruled that a law that “implies merely a legal distinction” between whites and blacks was not unconstitutional. As a result, restrictive Jim Crow legislation and separate public accommodations based on race became commonplace.

​​​​The Aftermath of Plessy

  • Gong Lum v. Rice, 275 U.S. 78 (1927) 
    • A child of Chinese blood, born in and a citizen of the United States, is not denied the equal protection of the law by being classed by the state among the colored races who are assigned to public schools separate from those provided for the whites when equal facilities for education are afforded to both classes.  Error to a judgment of the Supreme Court of Mississippi reversing a judgment awarding the writ of mandamus. The writ was applied for in the interest of Martha Lum, a child of Chinese blood, born in the United States, and was directed to the trustees of a high school district and the state Superintendent of Education, commanding them to cease discriminating against her and to admit her to the privileges of the high school specified, which was assigned to white children exclusively.

The Civil Rights Movement

  • Separate is Inherently Unequal

    • Brown v. Board of Education of Topeka (I), 347 U.S. 483 (1954)

      • ​Brown versus Board of Education (1954) (full name Oliver Brown, et al. v. Board of Education of Topeka, Kansas) was a Landmark decision by the Supreme Court of the United States. In 1950 in Topeka, Kansas, a black third-grade girl named Linda Brown had to walk more than a mile through a railroad switchyard to get to her segregated school for black children. However, there was an elementary school for white children less than seven blocks away. At that time, many schools in the United States were segregated. Black children and white children were not allowed to go to the same schools.

  • With All Deliberate Speed

    • Brown v. Board of Education of Topeka (II), 349 U.S. 294 (1955)

      • The task of implementing programs to achieve desegregation in public schools belongs to the schools themselves.  After the Brown I decision, which ruled that segregation in public schools was unconstitutional, the Supreme Court sought an additional set of arguments on what remedies would be appropriate. This presented a notable challenge because the cases stemmed from many different regions of the U.S. with distinctive conditions and problems. The Court acknowledged that all of the federal, state, and local laws that condoned segregation must be altered.

  • Marriage and Race

    • Loving v. Virginia388 U.S. 1 (1967)

      • ​Loving v. Virginia, 388 U.S. 1 (1967), was a landmark decision of the U.S. Supreme Court that struck down laws banning interracial marriage as violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. The decision was followed by an increase in interracial marriages in the U.S. and is remembered annually on Loving Day.

      • The case arose after Richard Loving, a white man, and Mildred Jeter, a woman of mixed African American and Native American ancestry, traveled from their residences in Central Point, Virginia, to Washington, D.C., to be married on June 2, 1958. Having returned to Central Point, they lived in the home of Mildred’s parents while Richard, a construction worker, built a new house for the couple. In July 1958, police entered the Lovings’ bedroom in the early morning hours and arrested them for having violated the state’s ban on interracial marriage.

  • Wartime Internment

    • Korematsu v. United States, 323 U.S. 214 (1944)

      • As part of the response to the Japanese attack on Pearl Harbor during the Second World War, the U.S. government decided to require Japanese-Americans to move into relocation camps as a matter of national security. Although strict scrutiny is the appropriate standard for policies that distinguish people based on race, an executive order interning American citizens of Japanese descent and removing many of their constitutional protections passed this standard. This decision has been largely discredited and repudiated.


Freedom of Speech and of the Press

  • "Heed Their Rising Voices"

    • New York Times Co. v. Sullivan376 U.S. 254 (1964)

      • During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.  Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.

Political Protest

  • Texas v. Johnson, 491 U.S. 397 (1989)

    • Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution. 

    • During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.

    • The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.

    • HELD: Johnson's conviction for flag desecration is inconsistent with the First Amendment.

Protesting for Civil Rights

  • Cox v. Louisiana, 379 U.S. 536 (1965)

    • Cox v. Louisiana, 379 U.S. 536 (1965), is a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that a state government cannot employ "breach of the peace" statutes against protesters engaging in peaceable demonstrations that may potentially incite violence.  The case arose after the picketing of a segregated restaurant on December 14, 1961, in Baton Rouge, Louisiana, led to the arrest of 23 student protesters from Southern University, a black college. The next day, B. Elton Cox, a minister, arranged a protest of 2,000 people at the courthouse where the students were being held. The police agreed to allow the protest as long as it was across the street from the courthouse. Between 100 and 300 whites gathered on the other side of the street. The protesters began to sing songs and hymns causing the jailed students to respond by singing. Cox then gave a speech urging the other protesters to sit at the segregated lunch counters causing "muttering" and "grumbling" in the crowd across the street. A sheriff then ordered the protesters to disperse. When they would not, the police used tear gas to disperse the crowd. The next day Cox was arrested.

Women's Rights

  • Roe v. Wade, 410 U.S. 113 (1973)

    • A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.

    • A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.


Interstate Commerce

  • Katzenbach v. McClung, 379 U.S. 294 (1964)

    • Federal laws like the Civil Rights Act of 1964 apply not only to restaurants that serve interstate travelers but also to restaurants that use food that has traveled in interstate commerce, which must provide fully equal access to African-Americans. In this early challenge to the Civil Rights Act of 1964, Ollie McClung argued that his restaurant could not be prohibited from discriminating against African-Americans because Congress did not have power under the Commerce Clause to enact this law. His restaurant, Ollie's Barbecue, was located on a major road in Birmingham, Alabama and was close to an interstate highway. Half of its food came from outside Alabama, although its suppliers were local. It served a meaningful number of customers from outside the state.


The Fourth Amendment and the Exclusionary Rule

  • The Exclusionary Rule in Federal Court

    • Weeks v. United States, 232 U.S. 383 (1914)​

      • Weeks v. United States, 232 U.S. 383 (1914), was a United States Supreme Court case in which the Court unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment.  It also prevented local officers from securing evidence by means prohibited under the federal exclusionary rule and giving it to their federal colleagues. It was not until the case of Mapp v. Ohio, 367 U.S. 643 (1961), that the exclusionary rule was deemed to apply to state courts as well.​

      • Under the Fourth Amendment, Federal courts and officers are under such limitations and restraints in the exercise of their power and authority as to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. The protection of the Fourth Amendment reaches all alike, whether accused of crime or not; and the duty of giving it force and effect is obligatory on all entrusted with the enforcement of Federal laws. The tendency of those executing Federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of Federal rights is not to be sanctioned by the courts which are charged with the support of constitutional rights.

  • ​​The Exclusionary Rule and State Courts

    • Wolf v. Colorado, 338 U.S. 25 (1949)

      • In a prosecution in a state court for a state crime, the Fourteenth Amendment of the Federal Constitution does not forbid the admission of relevant evidence even though obtained by an unreasonable search and seizure. Pp. 338 U. S. 25-33.

      •  Arbitrary intrusion into privacy by the police is prohibited by the Due Process Clause of the Fourteenth Amendment. While the doctrine of Weeks v. United States, making evidence secured in violation of the Fourth Amendment inadmissible in federal courts, is adhered to, it is not imposed on the States by the Fourteenth Amendment. Judgments of conviction in two criminal prosecutions in a state court were sustained by the State Supreme Court against claims of denial of rights under the Federal Constitution.

    • Mapp v. Ohio367 U.S. 643 (1961)

      • The prosecution is not allowed to present evidence that law enforcement secured during a search that was unconstitutional under the Fourth Amendment.

        • " . . . our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense." —Justice Clark, speaking for the majorit

      • Suspicious that Dollree Mapp might be hiding a person suspected in a bombing, the police went to her home in Cleveland, Ohio. They knocked on her door and demanded entrance, but Mapp refused to let them in because they did not have a warrant. After observing her house for several hours, the police forced their way into Mapp's house, holding up a piece of paper when Mapp demanded to see their search warrant. As a result of their search, the police found a trunk containing pornographic materials. They arrested Mapp and charged her with violating an Ohio law against the possession of obscene materials. At the trial the police officers did not show Mapp and her attorney the alleged search warrant or explain why they refused to do so. Nevertheless, the court found Mapp guilty and sentenced her to jail. After losing an appeal to the Ohio Supreme Court, Mapp took her case to the U.S. Supreme Court. The Court determined that evidence obtained through a search that violates the Fourth Amendment is inadmissible in state courts.

  • ​Search and Seizure: The Role of Informants

    • ​Illinois v. Gates,462 U.S. 213 (1983)

      •  The rigid "two-pronged test" under Aguilar and Spinelli for determining whether an informant's tip establishes probable cause for issuance of a warrant is abandoned, and the "totality of the circumstances" approach that traditionally has informed probable cause determinations is substituted in its place.

      • On May 3, 1978, the Police Department of Bloomingdale, Ill., received an anonymous letter which included statements that respondents, husband and wife, were engaged in selling drugs; that the wife would drive their car to Florida on May 3 to be loaded with drugs, and the husband would fly down in a few days to drive the car back; that the car's trunk would be loaded with drugs; and that respondents presently had over $100,000 worth of drugs in their basement. Acting on the tip, a police officer determined respondents' address and learned that the husband made a reservation on a May 5 flight to Florida. Arrangements for surveillance of the flight were made with an agent of the Drug Enforcement Administration (DEA), and the surveillance disclosed that the husband took the flight, stayed overnight in a motel room registered in the wife's name, and left the following morning with a woman in a car bearing an Illinois license plate issued to the husband, heading north on an interstate highway used by travelers to the Bloomingdale area. 

    • California v. Greenwood, 486 U.S. 35 (1988)

      • ​Acting on information indicating that respondent Greenwood might be engaged in narcotics trafficking, police twice obtained from his regular trash collector garbage bags left on the curb in front of his house. On the basis of items in the bags which were indicative of narcotics use, the police obtained warrants to search the house, discovered controlled substances during the searches, and arrested respondents on felony narcotics charges. Finding that probable cause to search the house would not have existed without the evidence obtained from the trash searches, the State Superior Court dismissed the charges under People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262, which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. Although noting a post-Krivda state constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state, but not federal, law, the State Court of Appeal affirmed on the ground that Krivda was based on federal, as well as state, law.

  • Stop and Frisk

    • Terry v. Ohio,392 U.S. 1 (1968)

      • Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous." 

      • A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying.

    • Arizona v. Johnson, 555 U.S. 323 (2009)

      • Arizona v. Johnson, 555 U.S. 323 (2009), is a United States Supreme Court case in which the Court held, by unanimous decision, that police may conduct a pat down search of a passenger in an automobile that has been lawfully stopped for a minor traffic violation, provided the police reasonably suspect the passenger is armed and dangerous.

      • While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

  • Search and Seizure in the Age of Technology

    • Katz v. United States, 389 U.S. 347 (1967)

      • It is unconstitutional under the Fourth Amendment to conduct a search and seizure without a warrant anywhere that a person has a reasonable expectation of privacy, unless certain exceptions apply.

      • Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation, since there was "no physical entrance into the area occupied by" petitioner.

        • Held: The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.

    • Kyllo v. United States533 U.S. 27 (2001)

      • Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal-imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.

  • Privacy Rights

    • City of Ontario v. Quon560 U.S. 746 (2010)

      • Ontario v. Quon, 560 U.S. 746 (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California, from a Ninth Circuit decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.

      • Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD’s internal affairs division. The investigating officer used Quon’s work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules.


Sixth Amendment Appointment of Counsel

  • Powell v. Alabama, 287 U.S. 45 (1932)

    • Powell v. Alabama, 287 U.S. 45 (1932), was a United States Supreme Court decision in which the Court reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama. The majority of the Court reasoned that the right to retain and be represented by a lawyer was fundamental to a fair trial and that at least in some circumstances, the trial judge must inform a defendant of this right. In addition, if the defendant cannot afford a lawyer, the court must appoint one sufficiently far in advance of trial to permit the lawyer to prepare adequately for the trial.

Assistance of Counsel: Indigent Defendants in Non-Capital Cases

  • Betts v. Brady, 316 U.S. 455 (1942)

    • The inmate was indicted for robbery. He requested that counsel be appointed. The state court judge advised him that it was not the local practice to appoint counsel for indigent defendants except in prosecutions for rape and murder. The inmate was found guilty in a bench trial and sought relief. Does the Fourteenth Amendment requires that a defendant be appointed counsel at a trial for every criminal offense? Later overruled by Gideon v. Wainwright, this decision held that defendants who cannot afford to pay a lawyer do not have the right to a state-appointed attorney.

      • The Sixth Amendment of the United States Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a state of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth Amendment. The court determined that the Fourteenth Amendment did not strictly require that a defendant be appointed counsel at a trial for every criminal offense. The inmate was not deprived of his liberty without due process of law because the Sixth Amendment guarantee of counsel only applied to trials in federal courts, and the Fourteenth Amendment did not incorporate that guarantee. There was no right to state-appointed counsel in every case in which a defendant, charged with a crime, was unable to obtain counsel. In most states, appointment of counsel was not a fundamental right, but was deemed a matter of legislative policy. Maryland defendants, such as the inmate, traditionally waived a jury trial, thereby trying their case before a judge who was in a better position to see that impartial justice was done.

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

    • In a unanimous decision, the Supreme Court established that the Fourteenth Amendment creates a right for criminal defendants who cannot pay for their own lawyers to have the state appoint attorneys on their behalf.

    • Charged in a Florida State Court with a noncapital felony, petitioner appeared without funds and without counsel and asked the Court to appoint counsel for him, but this was denied on the ground that the state law permitted appointment of counsel for indigent defendants in capital cases only. Petitioner conducted his own defense about as well as could be expected of a layman, but he was convicted and sentenced to imprisonment. Subsequently, he applied to the State Supreme Court for a writ of habeas corpus, on the ground that his conviction violated his rights under the Federal Constitution. The State Supreme Court denied all relief.

    • Held: The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment. Reversed and cause remanded.

The Fifth Amendment Protection Against Self-Incrimination

  • Escobedo v. Illinois, 378 U.S. 478 (1964)

    • As soon as someone is in the custody of law enforcement, he or she has a Sixth Amendment right to speak to an attorney.

    • Petitioner, a 22-year-old of Mexican extraction, was arrested with his sister and taken to police headquarters for interrogation in connection with the fatal shooting, about 11 days before, of his brother-in-law. He had been arrested shortly after the shooting, but had made no statement, and was released after his lawyer obtained a writ of habeas corpus from a state court. Petitioner made several requests to see his lawyer, who, though present in the building, and despite persistent efforts, was refused access to his client. Petitioner was not advised by the police of his right to remain silent and, after persistent questioning by the police, made a damaging statement to an Assistant State's Attorney which was admitted at the trial. Convicted of murder, he appealed to the State Supreme Court, which affirmed the conviction.

    • Held: Under the circumstances of this case, where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments, and no statement extracted by the police during the interrogation may be used against him at a trial. 

The Miranda Warning

  • Miranda v. Arizona384 U.S. 436 (1966)

    • Under the Fourth Amendment, any statements that a defendant in custody makes during an interrogation are admissible as evidence at a criminal trial only if law enforcement told the defendant of the right to remain silent and the right to speak with an attorney before the interrogation started, and the rights were either exercised or waived in a knowing, voluntary, and intelligent manner.

    • The defendant, while in police custody, was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases, the questioning elicited oral admissions, and, in three of them, signed statements as well, which were admitted at their trials. All defendants were convicted, and all convictions, except in No. 584, were affirmed on appeal.

    • Held: The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination.