Protections Under the U.S. Constitution
A defendant has the right to:
Remain Silent
Competent Counsel
Confront His/Her Accuser
Be Free of Cruel and Unusual Punishment
A defendant also has rights as described below in the Fourth, Fifth, Sixth and Eighth Amendments.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
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; nor shall private property be taken for public use, without just compensation.
Amendment VI
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 defense.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Criminal Procedure and Criminal Case Information
Probable Cause
You can be arrested without a warrant if law enforcement believe there is probable cause.Generally probable cause exists when there is enough evidence to cause a reasonable person to believe the accused has committed the crime in question.In other words if the police have evidence you have or are about to commit a crime, then they have probable cause to make an arrest.
Miranda Warning and Criminal Case Law
According to the Fifth Amendment, after the police detain a criminal suspect, they must read you the Miranda warning, which at the minimum must be:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Search Warrants
There are two basic types of warrants that may be issued by a judge- an arrest warrant and a search warrant.An arrest warrant gives law enforcement the authority to make an arrest of a particular person for a particular crime.If police have “reasonable” suspicion a crime was committed, then they can make an arrest without a warrant. If you’re arrested, law enforcement can search you and the area around you (meaning they can check and search the area within an arm’s length ) to find evidence they think is related to the crime.
If you are arrested without a warrant, you are entitled to a timely hearing to see if there is enough evidence to be formally charged with a crime. Criminal case law states that even if there is not enough evidence at the time and your are released, it is still possible for you to be arrested for the same crime at a later date.
If a search warrant is issued, it is usually carried out at the discretion of the police (note: the warrant may indicate when the search is to be conducted).The police are expected to announce when they enter the premises being searched unless they think evidence may be destroyed or lost.Everyone in the premises will be detained during the search pending the completion of the search. If evidence is found and there is probable cause to believe people detained had something to do with the crime, they may be arrested and charged with the crime for with the search was issued.
If the police don’t have a warrant and you give them permission to search you, your Fourth Amendment rights are waived and the search is considered legal.Any evidence found during this search to which you consented can be used against you. However, it is illegal if you do not consent to the search. It is a violation of your Fourth Amendment rights, which protects you from illegal searches and seizures.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(for more criminal case law information and protecting your rights go to www.flexyourrights.org or call a criminal lawyer in your state.)
Pre-Charging and Police Background Investigation
When you are suspected of committing a criminal offense, you need a criminal lawyer immediately. Your criminal case law attorney can initiate pre-filing or criminal defense investigation and get in contact with law enforcement and other investigating officers on your behalf. Too often we are contacted after the fact when people have already given a statement to the police.
** REMEMBER ** YOU HAVE THE RIGHT TO REMAIN SILENT AND NOT TO TALK TO THE POLICE.
During a pre-charging investigation, your criminal lawyer will contact the police for you, since nothing the lawyer says can be used against you. Police are very good at getting people to talk. You will need an attorney to talk to investigators on your behalf, especially if you are NOT GUILTY of the charges. The main purposes of criminal and pre-filing investigations are to advise you of your rights and to negotiate with police, district attorneys and/or prosecutors. It is also an opportunity to show the prosecution that they have a weak case, therefore not worth pursuing. Not only would you be saved from the emotional toll of prosecution, you can save thousands of dollars as well on bail, court and other criminal case law fees.
