Terenzini & Lucero, LLC
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Your Rights When Facing Criminal Charges

by | Jul 12, 2019 | Criminal Defense |

In reality – anything can happen to anyone. Even law-abiding citizens can find themselves caught up in the wrong place at the wrong time. Fortunately, we live in a country where everyone is presumed innocent until proven guilty in a court of law. Nevertheless, you need to be aware of your rights in every step of the legal process. Accidentally saying or doing something unwise may harm your chances of acquittal. Knowing what to do before, during, and after an arrest can make a world of difference in the outcome of your case. Are you aware of your legal rights when accused of a crime? Here’s a quick guide:

U.S. Constitutional Rights of Criminal Defendants

The United States Constitution outlines the rights of every accused person in the Bill of Rights, or first ten amendments to the document. Lawyers and politicians often debate the exact extent of these freedoms, though many state constitutions reiterate and further specify conditions. No matter how intimidating or shameful an arrest may seem, you never have to compromise your rights as a citizen just because you feel pressured by a police officer. Firmly and promptly exercising your rights in a criminal investigation or arrest is not a sign of disrespect. Refusing to answer questions by police, for example, may frustrate them but should never put you in legal jeopardy. The ultimate philosophy of the Constitution in criminal proceedings is the assurance that everyone accused person is assumed innocent until proven guilty beyond a reasonable doubt in court. The Constitution entitles every citizen to same basic criminal rights, including:

  • The right to remain silent in any police interrogations
  • The right represented by an attorney
  • The right to have an attorney present in all police questioning
  • The right to a speedy, public trial by a jury of your peers
  • The right to confront witnesses and evidence directly
  • Protection against being tried twice for the same offense (“double jeopardy”)
  • Protection against punishments that are too cruel or unusual for the crime
  • Protection against unreasonable police searches and seizures of your property and person.

Right to Remain Silent

The Fifth Amendment to the U.S. Constitution gives defendants the right to exercise silence when faced with police questioning, known as “Pleading the 5th”. The police or any government agency doesn’t have the right to force you to divulge information by intimidation or threats. If you do answer questions, you take the risk that you may misspeak and unintentionally give wrong information. The prosecution (lawyers of the state) can use any statements you make in a police investigation as evidence against you. Police must inform you of your right to remain silent, and other rights, at the time of your arrest. These are known as your “Miranda Rights”, named after the landmark Supreme Court case Miranda v. Arizona that requires police to read them. If an officer neglects to read these rights directly to you before you appear in court, a judge will likely throw out your case. The right to remain silent also means a court cannot force you to testify against yourself as the defendant. However, you may willingly choose to testify if you think it would benefit your case. If a court summons you to otherwise testify as a witness, you must appear and answer questions. Refusing a subpoena (order to appear in court) to testify can result in a contempt of court charge. The law prohibits the use of force to make a defendant speak against their will. If police use coercion in questioning, you should document this and present it to your lawyer. Such actions are part of your civic duty to keep the government accountable.

Right to be Represented by an Attorney

The Sixth Amendment to the U.S. Constitution entitles all defendants facing criminal charges to adequate representation in court. If the accused cannot afford a lawyer, the state must appoint a public attorney for their case. The guarantee does not just apply to trials, but also during plea bargains, police questioning, and any post-trial appeals. It is worth noting that state provided “adequate” representation doesn’t mean the best representation. Public attorneys are sometimes overloaded with multiple assigned cases or may not have the right experience in your case. Remember, the right to a lawyer only applies to criminal cases, not civil or military proceedings. You may also choose to represent yourself, though most people don’t have the legal experience to defend their case successfully.

Right to Not Face Questioning in the Absence of Your Attorney

As part of the 5th Amendment, you don’t need to answer any questions by police without your lawyer being present to advise you. Once a defendant asks for legal representation, the police cannot further questions them in the absence of their attorney.

Right to a Public Trial

The 6th Amendment entitles you to a public trial. This protection allows your family, other loved ones, and the press access to any part of the trial. A public case will ensure a fair and accountable proceeding through open transparency. American courts shouldn’t operate in secrecy! This rule, however, has a few reasonable exceptions. For example:

  • Involving Minors: if the case involves a minor under 18, their information is never released to the public. All juvenile courts are closed to the public to protect their identity.
  • Public Safety: in some cases that involve violent gangs, the government may place the witnesses or jury under protective services. Thus, these kinds of cases are close to the public.
  • Disruptive: if the audience is disruptive or distracting to the court proceeding, a judge may order police to remove them.
  • Decency: if the case involves a heinous sexual crime, like rape or child pornography, the lawyers may request the judge to close the case to the public to lessen the embarrassment of the victims.
  • National Security: In cases where the accused is charged with espionage or leaking classified government information, judges often close cases for obvious national security reasons.

Right to a Speedy Trial

The Sixth Amendment also entitles criminal defendants to a “speedy trial”. However, it does not specify time limits. So, the judge decides on a case-by-case basis if a defendant’s trial has stretched for so long that the case deserves to be thrown out. While deciding, the judge must consider the following factors:

  • The length of the delay
  • The reason for the delay
  • If the delay has harmed the defendant’s position in the case

The government cannot force an accused person to stay in jail forever. In many cases, over time physical evidence can deteriorate and the recollections of witnesses get foggy, making a fair trial time sensitive.

Right to a Jury Trial

For any criminal case, the person facing prosecution has the right to have a jury trial. Typically, a jury is a set of 12 citizens chosen randomly from the district where the crime took place. They have the responsibility at the end to declare the person guilty or not guilty of the accused crimes. The state will first pool as many as 20 citizens as potential jurors. Then both lawyers ask them background questions (known as the “voir dire” process) and then dismiss ones they determine may have a significant bias in the case. Usually, the Sixth Amendment makes a unanimous verdict a condition for either a conviction or acquittal. If the jury cannot come to a final decision together, the case is known as a “hung jury, ” and the accused walks free. A diverse jury of your peer ensures you a more rigorous process since the lawyers must convince many different people of their position, instead of one judge.

Right to Confront Witnesses

The 6th Amendment also entitles criminal defendants the right to cross-examining witnesses. The defense has the right to ask the witness to be physically present in the court, “look the defendant in the eye”, and answer any questions. However, in cases involving crimes against minors, the judge may allow children to testify via closed-circuit television. In such setups, the defendant can see the witness on a television monitor, but the witness cannot see the defendant.

Right to Not Face Trial Twice for the Same Offense

As part of the Fifth Amendment, the state cannot retry someone for the same offense once they are found not guilty. This clause is known as “double jeopardy” protection. Even if new evidence comes to light or you later confess the crime, the state cannot reopen the case after the verdict. However, under certain circumstances, a defendant is allowed to be prosecuted in a state court and a federal court simultaneously, if an aspect of the offense violated both federal and state laws. If investigators do discover new evidence after the case, it may lead to new charges for a different case. If you are found guilty, you can always appeal your case if you thought it was somehow unfair, such as a biased jury, false testimonies, or police corruption. A state panel of judges or the Federal Circuit Court of Appeals reviews appealed cases, depending on the case, and may they may defer them all the way up to the Supreme Court of the United States. In an appealed case, the judges may either declare a mistrial, overrule the guilty verdict and set the accused free, or uphold the conviction.

Protection Against Cruel & Unusual Punishments

“The punishment must fit the crime” sums up the 8th Amendment to the Constitution! Physical and psychological as torture violate our American values. Unless the convict is an extreme danger, most judges give sentences that try to rehabilitate them back into society. While prisons are certainly not a pleasant place, many offer gyms, libraries, and host religious services. Judges have the burden of handing out sentences that balance the humanity of the criminal and the safety of society. This amendment also protects against unreasonably high bail. If the defendant is not a danger to society and not accused of a violent offense, the judge cannot impose an outrageous bail, just to keep them in jail. The death penalty (or capital punishment) is perhaps the most politically divisive issue around the 8th Amendment. Maryland became the 18th state to abolish the death penalty in 2013. Currently, 31 states and the federal government reserve the right to administer it in extreme cases.

Protection Against Unreasonable Searches and Seizures by Police

Thanks to the 4th Amendment, your private property is protected against unreasonable searches and confiscation by the government. If police suspect you of a crime, they must have “probable cause” and request a signed warrant from a judge before conducting an official search of your possessions. So, if you are pulled over for any reason, and a police officer asks, “Mind if I search your vehicle?” you can simply respond, “I do mind. I would like to exercise my right to privacy.” While dialoguing in this way, you shouldn’t get angry, yell, and curse at the officer. If they claim to have a warrant, you may ask to see it and know what crime they are investigating. As expected, there are some reasonable exceptions for officers needing a warrant:

  • Terry frisk: according to the 1968 Supreme Court case Terry v. Ohio, police do not need a warrant or probable cause for an arrest to frisk or pat a suspect’s body down for any dangerous drugs or weapons.
  • Hot Pursuit: if police are chasing a dangerous suspect through town or a building, they don’t need a warrant to continue pursuing them for an arrest.
  • Plain Sight: if incriminating evidence is in plain sight from a public area or during an investigation, police do not need a warrant to obtain it.
  • “Automobile Exception”: if an officer legally stopped you for a traffic offense, an officer usually only needs probable cause to search your vehicle. This rule only applies if the vehicle can speed away with potential evidence, not stopped. The legal rationale being that evidence could be long gone with the vehicle by the time the officer gets a warrant issued quick enough. If you are pulled over, turn off your vehicle and keep the keys in plain sight.
  • Consent: if you verbally agree to a search, an officer no longer needs probable cause or a warrant to search your property. However, the suspect must have legal ownership of the property (you cannot give consent for someone else) and must be in the right state of mind.
  • Public Transportation: The TSA under Homeland Security regulates security at airports, ferries, subways, and some other public transportation. Because breaches in security from public transportation can jeopardize national security, the federal government has waived the need for a warrant or probable cause to conduct random searches. However, society hotly debates the full body scanners and general TSA oversight.

Lawyers tend to fight against sobriety checkpoints, drone surveillance, and other legally questionable routes police obtain evidence. And, as we become a more digital society, the 4th Amendment will become more complex. Just know, that your property remains private unless the government has a compelling reason search and confiscate it.

The Experienced Criminal Defense Attorneys of Bours & Lucero

Criminal trials are often excruciatingly complicated. And, given that your life, career, and reputation are at stake, you need the best possible criminal defense team! Terenzini & Lucero, LLC, can provide you expert legal advice and would be honored to take up your case. We are local attorneys with a focus on providing the highest quality legal representation to criminal defendants in Rockville, Maryland. Give us a call today!

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