United States constitutional criminal procedure

The United States Constitution contains several provisions regarding the law of criminal procedure.

Petit jury and venue provisions—both traceable to enumerated complaints in the Declaration of Independence—are included in Article Three of the United States Constitution. More criminal procedure provisions are contained in the United States Bill of Rights, specifically the Fifth, Sixth, Seventh and Eighth Amendments. With the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment, all of the criminal procedure provisions of the Bill of Rights have been incorporated to apply to the state governments.

Several of these rights regulate pre-trial procedure: access to a non-excessive bail, the right to indictment by a grand jury, the right to an information (charging document), the right to a speedy trial, and the right to be tried in a specific venue. Several of these rights are trial rights: the right to compulsory process for obtaining witnesses at trial, the right to confront witnesses at trial, the right to a public trial, the right to a trial by an impartial petit jury selected from a specific geography, and the right not to be compelled to testify against oneself. Others, such as the assistance of counsel and due process rights, have application throughout the proceeding.

If a defendant is convicted, the usual remedy for a violation of one of these provisions is reversal of the conviction or modification of the defendant's sentence. With the exception of structural errors (such as the total denial of counsel), constitutional errors are subject to harmless error analysis, although they must be harmless beyond a reasonable doubt. With the exception of a Double Jeopardy or Speedy Trial violation, the government will usually be permitted to retry the defendant. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), these provisions are the source of nearly all reviewable errors in federal habeas review of state convictions.

Relevant text

Article Three, Section Two, Clause Three of the United States Constitution provides that: Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Art. III, § 2, cl. 3.

The Fifth Amendment to the United States Constitution provides, in relevant part, that: 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 . . . . amend. V.

The Sixth Amendment to the United States Constitution provides that: 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. amend. VI.

The Eighth Amendment to the United States Constitution provides, in relevant part, that: Excessive bail shall not be required . . . . amend. VIII.

The Fourteenth Amendment to the United States Constitution provides, in relevant part, that: [N]or 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. amend. XIV.

History The Supreme Court of the United States issued almost no constitutional criminal procedure decisions for its first century of existence. Professor Akhil Amar highlights two reasons for this. First, the Court's decision in Barron v. Baltimore (1833) meant that the federal constitution did not apply in state proceedings until the incorporation of the Bill of Rights after the Fourteenth Amendment.Amar, 1996, at 1124. Second, the Court lacked general appellate jurisdiction over federal criminal cases until 1891.Amar, 1996, at 1124–25; see Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 826, 827.

The Marshall Court possessed jurisdiction in criminal cases only via writs of error from state courts, original writs of habeas corpus, and certificates of division from the circuit courts. In three cases involving certificates of division, the Marshall Court decided issues of double jeopardy, but did not clearly rely on the Double Jeopardy Clause.United States v. Nickerson, 58 U.S. (17 How.) 204 (1854); United States v. Randenbush, 33 U.S. (8 Pet.) 288, 290 (1834); United States v. Wilson, 32 U.S. (7 Pet.) 150, 159–60 (1833); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). Similarly, the Marshall Court discussed the level of detail required for a sufficient indictment without explicitly citing the Information Clause of the Sixth Amendment.United States v. Mills, 32 U.S. (7 Pet.) 138 (1833); United States v. Gooding, 25 U.S. (12 Wheat.) 460, 473–75 (1827).

In two appeals from state courts, the Taney Court considered, and rejected, double jeopardy claims arising from the hypothetical prospect of prosecution by the federal and state governments for the same conduct.Moore v. Illinois, 55 U.S. (14 How.) 13 (1852); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847).

The first Supreme Court decisions to reverse state criminal convictions for constitutional procedural reasons involved the exclusion of African-Americans for grand and petit juries—Strauder v. West Virginia (1880), Virginia v. Rives (1880), Neal v. Delaware (1881), Carter v. Texas (1900), Rogers v. Alabama (1904), and Norris v. Alabama (1935)—and the conviction African-American defendants for crimes involving white victims in the southern states: by a mob-dominated trial, as in Moore v. Dempsey (1923); and without counsel, as in Powell v. Alabama (1932).Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 48 (2000).

Pre-trial procedure

Bail

U.S. Const. amend. VIII provides: Excessive bail shall not be required . . . .

Stack v. Boyle (1951) is the only case in which the Supreme Court has held the bail imposed to have been constitutionally excessive. There, the Court found $50,000 to be excessive in relation to the flight risk for impecunious defendants charged under the Smith Act.Stack v. Boyle, 342 U.S. 1 (1951). In United States v. Salerno (1987), the Court upheld the Bail Reform Act of 1984, which authorized the consideration of future dangerousness in the determination of the amount of, or the denial of, bail.United States v. Salerno, 481 U.S. 739 (1987).

The incorporation status of the Excessive Bail Clause is unclear. In Schilb v. Kuebel (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment."Schilb v. Kuebel, 404 U.S. 357 (1971). In Murphy v. Hunt (1982), the Court did not reach the issue because the case was dismissed as moot.Murphy v. Hunt, 455 U.S. 478 (1982). Bail was included in the list of incorporated rights in McDonald v. Chicago (2010), citing Schilb.McDonald v. City of Chicago, 130 S. Ct. 3020, 3034 n.12 (2010).

Grand Jury

U.S. Const. amend. V 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 . . . .

The Grand Jury Clause applies only to capital and "otherwise infamous" crimes. Any crime "punishable by imprisonment in the penitentiary" is infamous.Mackin v. United States, 117 U.S. 348, 352 (1886) ("[I]mprisonment in a State prison or penitentiary, with or without hard labor, is an infamous punishment."); see also Ex parte Wilson, 114 U.S. 417, 429 (1885) ("[A] crime punishable by imprisonment for a term of years at hard labor is an infamous crime . . . ."). Only those convicted of felonies, i.e. crimes punishable by greater than one year of imprisonment, are confined to a penitentiary. Any crime punishable by hard labor, regardless of the term or place of imprisonment, is also infamous.United States v. Moreland, 258 U.S. 433 (1922); see also Wong Wing v. United States, 163 U.S. 228 (1896). Contempt of court, even if punished by greater than one year imprisonment, is not infamous.Green v. United States, 356 U.S. 165, 183–87 (1958). In Hurtado v. California (1884), the Supreme Court held that the Grand Jury Clause was not incorporated to apply to the states by the Fourteenth Amendment.Hurtado v. California, 110 U.S. 516 (1884); For later cases adhering to Hurtado, see Beck v. Washington, 369 U.S. 541, 545–55 (1962); Lem Woon v. Oregon, 229 U.S. 586 (1913); Maxwell v. Dow, 176 U.S. 581 (1900); McNulty v. California, 149 U.S. 645, 648 (1893).

If the grand jury right attaches, every element of the charged crime must be submitted to the grand jury.Stirone v. United States, 361 U.S. 212 (1960). Thus, the prosecution cannot augment the indictment without returning to a grand jury.Ex parte Bain, 121 U.S. 1 (1887), overruled in part by United States v. Cotton, 535 U.S. 625 (2002). But, the government may narrow the indictment without so returning.United States v. Miller, 471 U.S. 130 (2007).

The Grand Jury Clause does very little, if anything, to regulate the procedures of the grand jury. For example, the Clause does not prohibit a grand jury indictment based solely on hearsay evidence.Costello v. United States, 350 U.S. 359 (1956). Non-fundamental flaws with the grand jury, such as a violation of the defendant's self-incrimination rightsLawn v. United States, 355 U.S. 339, 349 (1958). or a violation of grand jury secrecyMidland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989). do not trigger a right not to be tried. In United States v. Williams (1992), where the Court rejected a rule that would have required "substantial exculpatory evidence" to be presented to the grand jury, the defendant did not even argue a Fifth Amendment violation.United States v. Williams, 504 U.S. 36, 45 (1992). The lack of a grand jury does not deprive the court of jurisdiction, and the defendant may waive the grand jury right.United States v. Cotton, 535 U.S. 625 (2002).

Information U.S. Const. amend. VI provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation . . . .

A charging instrument is constitutionally sufficient under this clause (and under the Grand Jury Clause) if it (1) "contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet," and (2) "shows with accuracy to what extent he may plead" double jeopardy in a subsequent prosecution.Russell v. United States, 369 U.S. 749, 763–64 (1962) (internal quotation marks omitted). This right has been incorporated.Cole v. Arkansas, 333 U.S. 196 (1948).

In a case submitted to a grand jury, the indictment must satisfy this requirement. In cases not required to be submitted to a grand jury, the formal charging instrument is referred to as an "information" (in the federal system and in some states) or a "complaint."

Speedy trial

U.S. Const. amend. VI provides: