Your Rights

Constitutional Rights

In Criminal Law, there are certain Constitutional Rights that appear so regularly that it is important for people to understand them. Often, people assume that they understand the rights but they really do not. Because the Constitutional Rights under the 4th, 5th and 6th are so important, they will be highlighted here so that they can be easily referred to and understood:

4th Amendment – Unreasonable Searches and Seizures

The 4th Amendment to the United States Constitution protects against unreasonable searches and seizures. The 4th Amendment reads as follows:

“ 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. ”

Many people believe that if law enforcement asks to search one’s pockets or car or home that the search should be allowed because there is nothing to hide. Certainly, if that same person asked the officer if the officer could be searched, the officer would not allow it. Citizens have the same right against such searches. Do not consent to the search because the search may otherwise be illegal. If there is consent to the search, the person gives up or waives the rights under the Constitution.

5th Amendment – The Right to Remain Silent

One of the most important rights in criminal law is the right to remain silent. This is a Constitutional right and is protected under the law. Many people are confused by this right and believe that it is safer to discuss a case with police rather than to exercise the right to remain silent. People mistakenly believe that if they refuse to speak to law enforcement that it makes them look guilty or that they are hiding something. This is wrong. Law enforcement respects people who exercise their Constitutional rights because these are rights that law enforcement is bound to protect. The 5th Amendment to the Constitutions states that no person:

“shall be compelled in any criminal case to be a witness against himself.”

A person’s Miranda rights explain the meaning of the 5th Amendment rights to mean this:

“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 an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”

One of the most important parts of the Miranda warning is that anything you say can and will be used against you. Since anything you say will be used against you, there is no benefit talking to law enforcement without an attorney. The stakes are too high and usually you do not know what information law enforcement has to know if you are in fact incriminating yourself. It is better, therefore, to not talk and to remain silent.

The right to remain silent is so protected that even at trial, it cannot be mentioned by the prosecution that one chose to remain silent and refused to make a statement to law enforcement.

6th Amendment –Right to an Effective Attorney

In all criminal prosecutions, the accused is entitled to an attorney to assist in the defense. The accused has an absolute right to hire an attorney of his or her choice, and if an attorney cannot be afforded by the person accused, an attorney will be appointed to represent the accused free of charge. An attorney appointed by the court is either a Public Defender or a Court Appointed Attorney, which usually means an attorney in private practice who is hired by the county to represent people who the Public Defender cannot represent.

The criminal defendant also has the right to decline legal representation and represent himself. However, the legal system is so complicated that it is not wise to represent one’s self.

The 6th Amendment right to an attorney means the right to an effective attorney. Some defendants, however, are provided with ineffective assistance of counsel. This is a violation of the 6th Amendment. To prove ineffective assistance of counsel, a person must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, [the defendant] must establish that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.” Ineffective assistance of counsel involves two questions: (1) whether performance was deficient and (2) whether there was prejudice to the defendant.

6th Amendment – Right to Speedy and Public Trial

Criminal defendants have the right to a speedy and public trial. These rights protect defendants from a prolonged prosecution, from sitting in jail for long periods of time before resolving their case, and from the court making decisions about the case without the public knowing about it.
In misdemeanor cases, the trial must commence within 30 days if the person is in custody and 45 days if the person is out of custody. In a felony case, a preliminary hearing must be held within 10 court days or 60 calendar days. After the preliminary hearing, the trial must be held within 60 days after the plea of not guilty or the arraignment. A defendant may waive time or give up the right to have the trial set within these time periods.

6th Amendment – Right to a Jury Trial

A criminal defendant also has the right to be tried by a jury. A jury in state court consists of 12 members of the community who decide if a defendant is guilty or innocent. The 12 must all agree on whether a defendant is guilty or innocent. If they are unable to agree unanimously, then there is a hung jury and the case may be retried or dismissed.

Before a jury can legally make a finding of guilt, it must believe beyond a reasonable doubt that the defendant is guilty. Beyond a reasonable doubt means that the only reasonable conclusion in the case is that the defendant is guilty. If there are 2 reasonable interpretations of the evidence in the case, one that points to the defendant’s innocence and the other that points to his guilt, the jury must find the defendant innocent because the law says that the defendant must receive the benefit of the doubt.