On the heels of President Obama's choice of Sonia Sotomayor to replace David Souter in the US Supreme Court, this seems like a good time as any to bring up some criminal justice-related issues. More specifically, the current Court has not been kind in protecting the rights of those accused of committing a crime. Here are a few examples:

Arizona v. Johnson: Allows police to perform a stop-and-frisk search during a traffic stop whether or not the suspect has committed or is committing a crime.

Kansas v. Ventris: Allows testimony gathered in violation of the Sixth Amendment admissible at trial for the purpose of impeaching a witness.

Herring V. US: Allows illegally seized evidence to be presented as evidence at trial if the illegality was caused by police error.

And today, the New York Times reports this gem out of Michigan:

 The Supreme Court on Tuesday made it easier for the police and prosecutors to question suspects, lifting some restrictions on when defendants can be interrogated without their lawyers present.

 

In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case, which forbade the police from interrogating a defendant once he invoked his right to counsel at an arraignment or a similar proceeding.

 

In a nutshell, the old law held that if you had a lawyer on retainer or invoked your right to counsel the police could not question you any further even if you wanted to make a statement.

Some may say that this is common sense, that if a guy wants to talk to the police without his lawyer he should be able to. But there are a couple of things wrong with this argument:

First, a person that has retained or requested counsel must have done so for a reason. Any set of circumstances, from police coercion (which is illegal) to police deception (which is perfectly legal) could be used to cause the person to speak without counsel against his own interests.

Second, in the heat of the moment a person may make statements under duress. Police have all the incentive to use this fear, confusion, etc to extract a statement without counsel. Counsel is obligated to ensure that his client is capable of making a statement based on the client's interest.

Now, I will admit that there have been some good decisions related to criminal justice issues (Arizona v. Gant comes to mind). But criminal justice cases tend to fly under the radar while topics like abortion, religious expression, and gun rights get top billing.

Most people accept this fact. It's just people accused of crimes, after all. Remember, though, that the Constitution is like a sweater. You can only pick at it so much before it completely unravels. Also keep this in mind: you, too, could one day be accused of committing a crime and Amendments 4-6 become real important real fast.