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The Great Right (with poll!)

By Gideon

We all have rights. You have rights, I have rights and most importantly, criminal defendants have rights. These latter rights are fundamental to the orderly administration of justice. They represent a check on the awesome power of the Government.

But what if you had to live without all but one? Which one would you be unable to do without? This is the question posed to me by fellow blogger Ryan “I’m a Red Sox fan” McKeen.

So I turned to the brains behind this operation, Miranda, who was kind enough to compile this list of essential rights afforded criminal defendants:

1.    right to fair trial by impartial fact finder
2.    right to jury
3.    right against self incrimination
4.    protection against double jeopardy
5.    right to counsel
6.    right to be free from cruel and unusual punishment
7.    right to speedy trial
8.    right to confront witnesses against you
9.    free from unreasonable search and seizure
10.  burden of proof

These aren’t in any particular order, but that’s the point of this post. What’s your order? Which is the most critical right? The Great Right^TM, as it were, if you will allow me that pun.

I think a very strong case can be made for each and every one of these rights. The right to a trial by jury prevents the Government from loading the judiciary with partisan people who are anti-defendants (oh. wait…). The right against self-incrimination forces the Goverment to prove its case. The right to confront witnesses protects people from uncorroborated allegations.

Search and seizure need not be expounded upon.

There is one, though, that warrants special attention in my opinion. That is the right to counsel. How useless would the other rights be without the ability to have someone stand up for you and assert those rights. Lay persons are not very well versed in the intricacies of Constitutional law (and boy, do they flummox most lawyers too!).

The answer might be different if the rights were absolute. They aren’t. Every single right mentioned above has caveats and exceptions and, in some cases, is becoming practically non-existent. (Habeas went missing a while ago, has it been found?)

The Right to Counsel ties it all together, perhaps. It arms the common man with the arsenal with which to fight back, with which to know which sling and arrow to wield in a particular case.

The burden of proof also warrants some consideration here. It is an awesome protection that the Goverment must prove its allegation beyond a reasonable doubt. It is not enough that it is likely the defendant committed a crime.

Of course, one could cheat and take the easy way out in answering this question. “Due Process of Law” would pretty much encompass everything. But that’s not an answer.

So, dear, dear readers. What think you? Comment here, write a post about it or just participate in the poll.

Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.

Full post as published by A Public Defender on December 18, 2008 (boomark / email).