3.8 Amendments: Due Process and the Rights of the Accused 

Protections of the Bill of Rights have been selectively incorporated by way of the Fourteenth Amendment’s due process clause to prevent state infringement of basic liberties. 

Explain how states are limited by the due process clause from infringing upon individual rights.


The Court has occasionally ruled in favor of states’ power to restrict individual liberty, as, for example, when speech can be shown to increase the danger to public safety. 

The Miranda rule involves the interpretation and application of accused persons’ due process rights as protected by the Fifth and Sixth Amendments. Yet, the Court has sanctioned a “public safety” exception that allows unwarned interrogation to stand as direct evidence in court.

 Pretrial rights of the accused and the prohibition of unreasonable searches and seizures are intended to ensure that citizen liberties are not eclipsed by the need for social order and security, including:

The due process clause has been applied to guarantee the right to an attorney and protection from unreasonable searches and seizures, as represented by:

 Gideon v. Wainwright (1963), guaranteed the right to an attorney for the poor or indigent The exclusionary rule, which stipulates evidence illegally seized by law enforcement officers in violation of the suspect’s Fourth Amendment right to be free from unreasonable searches and seizures cannot be used against that suspect in criminal prosecution 

Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decisionmaker.

This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.


The Fourteenth Amendment significantly altered the balance of power between national and state governments. Specifically, the due process clause has enabled the U.S. Supreme Court to apply the Bill of Rights to the states. This has led to a more uniform legal system across the country. For example, protections under the Fourth Amendment, which previously applied only to the federal government, now extend to all fifty states. Consequently, due process and the rights of the accused are consistent nationwide. The incorporation of the Bill of Rights has minimized the differences in legal systems from state to state, as states cannot violate individual rights under the due process clause. The importance of the Bill of Rights has increased, and some political scientists view the Fourteenth Amendment's passage as a second American revolution.

Courts have determined that citizens' freedoms must be balanced with the government's duty to maintain order. This has been evident when the courts restricted speech in potentially dangerous situations. A notable example is the Miranda rule, which interprets the due process rights of accused individuals under the Fifth and Sixth Amendments. However, the Court has allowed a "public safety" exception, permitting unwarned interrogations to be used as evidence in court. Essentially, the right to remain silent can sometimes be compromised.

The rights of defendants before trial and the ban on unreasonable searches and seizures aim to protect individual freedoms from being overshadowed by the need for public safety and order. The Bill of Rights guarantees everyone the right to legal representation, a swift and open trial, and a fair jury. Courts have acknowledged the protection against warrantless searches of cell phone data and have imposed limits on the bulk collection of telecommunication information under the Patriot and USA Freedom Acts. Thanks to incorporation, these protections apply in all fifty states, providing universal coverage. While these measures have enhanced the government's authority, they also ensure fairer protection for individuals.

The due process clause has been used to secure the right to an attorney and protection against unreasonable searches and seizures, as illustrated by the Gideon v. Wainwright case (1963), which established the right to legal counsel for those who cannot afford it. Additionally, the exclusionary rule prevents law enforcement from using evidence obtained through violations of an individual's Fourth Amendment rights during criminal prosecution. In recent years, there has been an expansion of the rights for the accused, alongside the standardization of police practices.


A Due Process Clause appears in both the Fifth Amendment and the Fourteenth Amendment to the U.S. Constitution. These provide that nobody may be deprived of life, liberty, or property without due process of law. Courts have developed two branches of due process doctrine: procedural due process and substantive due process.

First, procedural due process involves the steps that must be taken before someone is deprived of an interest involving life, liberty, or property. These vary depending on the situation but typically include notice and an opportunity to be heard, as well as an unbiased decision-maker. Sometimes procedural due process also may entail a right to present evidence, a right to cross-examine opposing witnesses, and an opportunity to be represented by counsel, among other protections.

Meanwhile, substantive due process involves certain fundamental rights that are deeply rooted in American history and tradition. Notable areas in which this doctrine has arisen include reproductive rights, LGBTQ+ rights, and end-of-life decisions. A court usually applies strict scrutiny to government actions that affect fundamental rights, which means that the government must show that its action furthered a compelling interest and was narrowly tailored to achieve that interest.


The Fourth Amendment protects against "unreasonable searches and seizures" and mandates that all warrants must be based on "probable cause." This means that, generally, police cannot search or seize items without a warrant issued by a judge and backed by evidence suggesting criminal activity. In a 2012 ruling, the Court determined that placing a GPS device on a suspected criminal's car also qualifies as a search that requires a valid warrant. However, there are exceptions to this requirement. Police can search or seize items if it occurs during a lawful arrest, if they see evidence of a crime in plain sight, if there is probable cause for searching a vehicle, if a search of students in schools is warranted by the situation, if officers are in "hot pursuit" of a suspect, during a "stop and frisk" of a suspicious person, under certain conditions for drug testing public employees, when entering the country or boarding flights, and when accessing certain public buildings like courthouses.

How are these exceptions determined? What criteria does the Court use to decide which searches can be considered "reasonable" without a warrant? In the 1977 case of Pennsylvania v. Mimms, the Court addressed this issue. The Pennsylvania Supreme Court had overturned a criminal conviction after police found a loaded handgun on a driver with an expired license plate. The police had pulled the driver over, asked him to exit the vehicle, and then noticed a bulge under his jacket. When they searched him, they discovered the gun. He was later convicted for carrying a concealed weapon without a license and sentenced to prison.

In reinstating the conviction, the U.S. Supreme Court stated that the primary concern was whether the "governmental invasion of a citizen’s personal security" was justified based on "all the circumstances." The Court explained that "reasonableness" involves balancing public interest against an individual's right to personal security without unwarranted police interference. They reiterated that the Constitution does not prohibit all searches and seizures, only those that are unreasonable. In this specific case, the Supreme Court concluded that the search was reasonable and did not violate the Fourth Amendment.

The rules regarding seizures are crucial because court decisions prevent the use of improperly obtained evidence, regardless of its relevance to proving guilt. This principle is known as the exclusionary rule. For instance, in the Mimms case, it was clear that the defendant had violated state law by carrying a concealed weapon without a license. However, if the court had found the seizure illegal, as the Pennsylvania Supreme Court did, the evidence would have been discarded, leading to the defendant's release.

The exclusionary rule was established by the U.S. Supreme Court for federal criminal cases in 1914. Before this, federal courts followed a common law approach that permitted the use of all relevant evidence in trials, no matter how it was collected. Although the Fourth Amendment prohibits unreasonable seizures, it did not clarify what should happen to improperly obtained evidence.

In 1961, the Court expanded the exclusionary rule to state courts in Mapp v. Ohio, not on a constitutional basis, but to discourage improper police conduct. Subsequent rulings upheld this decision while introducing exceptions, such as the "good faith exception" defined in 1984. This exception states that if police acted in "good faith" based on a warrant that was later found to be wrongful, the evidence could still be admitted. Dismissing evidence that police believed they had the right to collect would not effectively discourage future misconduct.

The exclusionary rule, which is unique to the United States, is a topic of debate. Critics argue that it allows guilty individuals to go free and does little to prevent police misconduct. They suggest using all relevant evidence in court and addressing police behavior through administrative actions or civil lawsuits from those affected by illegal searches. Supporters, on the other hand, believe the rule does help deter some police misconduct and emphasize the importance of keeping illegally obtained evidence out of the judicial process.


The Fifth Amendment states that no individual can be forced to testify against themselves in a criminal case. Initially, the Supreme Court limited this protection to extreme methods, like torture, used to obtain confessions. In a 1936 case from Mississippi, the Court overturned a conviction based on confessions gained through physical torture, asserting that torture should never replace a fair questioning process. Over the years, the Court adopted a "totality of the circumstances" approach, evaluating whether a confession was coerced by considering various factors, such as the defendant’s age, maturity, and the interrogation's nature and length.

In the significant 1966 case Miranda v. Arizona, the Court shifted from this approach to requiring that police inform all criminal suspects of specific rights—now widely known as Miranda warnings—before any questioning. These warnings inform suspects that they have the right to remain silent, that anything they say may be used against them in court, that they have the right to an attorney, and that one will be provided for them if they cannot afford one.

Once these warnings are given, suspects can knowingly and intelligently waive their rights and choose to speak. However, if they do not waive these rights, any information obtained during interrogation cannot be used against them. Chief Justice Earl Warren, representing the slim five-member majority, argued that even without physical coercion, the pressure of being in custody undermines personal freedom and takes advantage of vulnerable individuals. He claimed that police questioning is inherently coercive, and without these specific warnings, any statements made by a defendant cannot be considered a result of free will.

The dissenting justices argued that the Fifth Amendment only requires that confessions be genuinely voluntary. They pointed out that Ernesto Miranda, accused of kidnapping and raping an 18-year-old girl in 1963, had been identified in a lineup and interrogated for less than two hours with no force or threats. During this time, he provided a detailed oral confession and later wrote and signed a statement about the crime. Dissenting Justice John Marshall Harlan expressed astonishment that the Constitution could lead to the dismissal of Miranda's confession under these circumstances.

The more traditional Supreme Court, led by Chief Justices Warren Burger from 1969 to 1986 and William Rehnquist from 1986 to 2005, chose not to overturn the Miranda ruling. However, it permitted some flexibility in the exact wording of the warnings as long as the police officer covered all necessary points outlined in Miranda. More significantly, the Court allowed statements that would normally be inadmissible under Miranda to be utilized for challenging the credibility of a defendant who chose to testify on their own behalf.