CONSTITUTIONAL RIGHTS OF THE ACCUSED
CONSTITUTIONAL RIGHTS OF THE ACCUSED
The accused should never waive their constitutional rights. Every person has rights afforded to them by the U.S. Constitution. The Fourth, Fifth and Sixth Amendments to the U.S. Constitution provide certain protections for the accused. The protections in each Amendment will be discussed as they relate to criminal defendants.
FOURTH AMENDMENT: WARRANT REQUIREMENT AND THE RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE
The Fourth Amendment prohibits the use of unlawfully seized evidence and requires a warrant to conduct searches. The Fourth Amendment states 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.”
If you are the focus of a criminal investigation, state or federal law enforcement must first secure a search warrant before conducting a search. A law enforcement officer prepares an affidavit establishing probable cause for the search. A judge then reviews the affidavit. If the judge believes the affidavit established probable cause, then a warrant will be executed.
EXCEPTIONS TO WARRANTLESS SEARCHES
A search conducted without a warrant is unlawful, and all evidence seized from the search will be ruled inadmissible. There are exceptions to the rule that a search warrant is required to conduct a search, and they are:
- Consent. A defendant can give consent to conduct a search. Any evidence seized during a consensual search is admissible. NEVER give consent to a search.
- Plain View. A law enforcement officer can seize evidence in plain view. The officer’s presence at the scene must be lawful. Evidence seized by an officer without a legal right to be at the scene will be inadmissible.
- Search Incident To A Lawful Arrest. When a law enforcement officer makes a lawful arrest, the officer can search the person arrested and the area around their immediate control.
- Stop & Frisk. A law enforcement officer can stop you to ask questions and conduct a pat-down search for the officer’s safety. The officer must have a reasonable suspicion that a crime has occurred or will occur.
- Automobile Exception. A warrantless search of a vehicle may be justified if a law enforcement officer has probable cause to believe the vehicle contains contraband, controlled substances, or criminal evidence.
- Hot Pursuit. If a law enforcement officer is pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant.
- Exigent Circumstances. Exigent circumstances require immediate action. Rendering aid in an emergency, ensuring public safety, or preserving evidence that will be destroyed or removed are examples of exigent circumstances.
- Caretaker Exception. Evidence obtained from a third party is admissible. Discarded or abandoned evidence is admissible.
- Open Field Exception. Evidence seized in an open field is admissible. Whether an area or structure constitutes an “open field” depends upon its proximity to the related home, whether it is enclosed, what the area is used for, and whether the area was shielded from view.
- School Searches. Students have a lesser expectation of privacy in school, and school officials can conduct warrantless searches.
- Border Searches. Border searches do not require a warrant.
Evidence seized following a warrantless search will be admissible if the search was conducted under one of the above exceptions.
EXCEPTIONS TO THE EXCLUSIONARY RULE
When a law enforcement officer conducts a warrantless search without a valid exception, the exclusionary rule may apply. The exclusionary rule requires the suppression of unlawfully seized evidence. There are exceptions to the exclusionary rule, and they are:
- Good Faith Exception. If it can be shown that the police acted in good faith, otherwise suppressible evidence may be ruled admissible. This often applies to faulty search warrants. If a law enforcement officer acted in good faith based on the faulty search warrant, the evidence seized may be ruled admissible.
- Inevitable Discovery. Evidence that is subject to suppression may be deemed admissible. If the state can prove that the contraband in question would have been discovered regardless of the unlawful search that initially uncovered it, it may be ruled admissible.
- Fruit Of The Poisonous Tree. All evidence seized as a result of an initial unlawful search may be ruled inadmissible.
If a defendant challenges an unlawful search, he or she must have standing. To have standing, the rights of the defendant must have been violated. A defendant cannot challenge an unlawful search for another person.
FIFTH AMENDMENT: THE RIGHT TO REMAIN SILENT
The Fifth Amendment allows you to remain silent. The Fifth Amendment states as follows: ” 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 offence 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.”
Everyone who watches police shows on television has heard the phrase Miranda Rights. These are the rights law enforcement officers must read to you before a custodial interrogation. The rights a law enforcement officer must advise you of are:
- 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 have a lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
The portion of the Fifth Amendment that reads “. . . nor shall be compelled in any criminal case to be a witness against himself . . . ,” is the portion that provides your right to remain silent. A law enforcement officer will ask you if you want to waive your rights and answer their questions, and they will give you a written waiver to sign. NEVER waive your right to remain silent.
SIXTH AMENDMENT: THE RIGHT TO COUNSEL
The Sixth Amendment allows the presence of counsel during all questioning. The Sixth Amendment states as follows: ” 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.”
Simply stated, the Sixth Amendment’s rights are: (1) to know what charges are being brought against you, (2) to a speedy trial by a jury of your peers, (3) to face your accusers and cross-examine them (Confrontation Clause), (4) to call your own witnesses in your defense (Compulsory Process Clause) and (5) the right to a lawyer during all questioning (Assistance Of Counsel Clause).
The Assistance Of Counsel Clause is part of the Miranda Rights that law enforcement officers must read to you before a custodial interrogation. It is important to have a lawyer present during questioning because a lawyer can guide you through the questioning and prevent a costly mistake. NEVER waive your right to a lawyer. Immediately advise law enforcement you want a lawyer.
Invoke your Constitutional Rights. Constitutional rights of the accused exist to protect you in criminal prosecutions.
CONSTITUTIONAL RIGHTS OF THE ACCUSED
CONSTITUTIONAL RIGHTS OF THE ACCUSED
The accused should never waive their constitutional rights. Every person has rights afforded to them by the U.S. Constitution. The Fourth, Fifth and Sixth Amendments to the U.S. Constitution provide certain protections for the accused. The protections in each Amendment will be discussed as they relate to criminal defendants.
FOURTH AMENDMENT: WARRANT REQUIREMENT AND THE RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE
The Fourth Amendment prohibits the use of unlawfully seized evidence and requires a warrant to conduct searches. The Fourth Amendment states 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.”
If you are the focus of a criminal investigation, state or federal law enforcement must first secure a search warrant before conducting a search. A law enforcement officer prepares an affidavit establishing probable cause for the search. A judge then reviews the affidavit. If the judge believes the affidavit established probable cause, then a warrant will be executed.
EXCEPTIONS TO WARRANTLESS SEARCHES
A search conducted without a warrant is unlawful, and all evidence seized from the search will be ruled inadmissible. There are exceptions to the rule that a search warrant is required to conduct a search, and they are:
- Consent. A defendant can give consent to conduct a search. Any evidence seized during a consensual search is admissible. NEVER give consent to a search.
- Plain View. A law enforcement officer can seize evidence in plain view. The officer’s presence at the scene must be lawful. Evidence seized by an officer without a legal right to be at the scene will be inadmissible.
- Search Incident To A Lawful Arrest. When a law enforcement officer makes a lawful arrest, the officer can search the person arrested and the area around their immediate control.
- Stop & Frisk. A law enforcement officer can stop you to ask questions and conduct a pat-down search for the officer’s safety. The officer must have a reasonable suspicion that a crime has occurred or will occur.
- Automobile Exception. A warrantless search of a vehicle may be justified if a law enforcement officer has probable cause to believe the vehicle contains contraband, controlled substances, or criminal evidence.
- Hot Pursuit. If a law enforcement officer is pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant.
- Exigent Circumstances. Exigent circumstances require immediate action. Rendering aid in an emergency, ensuring public safety, or preserving evidence that will be destroyed or removed are examples of exigent circumstances.
- Caretaker Exception. Evidence obtained from a third party is admissible. Discarded or abandoned evidence is admissible.
- Open Field Exception. Evidence seized in an open field is admissible. Whether an area or structure constitutes an “open field” depends upon its proximity to the related home, whether it is enclosed, what the area is used for, and whether the area was shielded from view.
- School Searches. Students have a lesser expectation of privacy in school, and school officials can conduct warrantless searches.
- Border Searches. Border searches do not require a warrant.
Evidence seized following a warrantless search will be admissible if the search was conducted under one of the above exceptions.
EXCEPTIONS TO THE EXCLUSIONARY RULE
When a law enforcement officer conducts a warrantless search without a valid exception, the exclusionary rule may apply. The exclusionary rule requires the suppression of unlawfully seized evidence. There are exceptions to the exclusionary rule, and they are:
- Good Faith Exception. If it can be shown that the police acted in good faith, otherwise suppressible evidence may be ruled admissible. This often applies to faulty search warrants. If a law enforcement officer acted in good faith based on the faulty search warrant, the evidence seized may be ruled admissible.
- Inevitable Discovery. Evidence that is subject to suppression may be deemed admissible. If the state can prove that the contraband in question would have been discovered regardless of the unlawful search that initially uncovered it, it may be ruled admissible.
- Fruit Of The Poisonous Tree. All evidence seized as a result of an initial unlawful search may be ruled inadmissible.
If a defendant challenges an unlawful search, he or she must have standing. To have standing, the rights of the defendant must have been violated. A defendant cannot challenge an unlawful search for another person.
FIFTH AMENDMENT: THE RIGHT TO REMAIN SILENT
The Fifth Amendment allows you to remain silent. The Fifth Amendment states as follows: ” 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.”
Everyone who watches police shows on television has heard the phrase Miranda Rights. These are the rights law enforcement officers must read to you before a custodial interrogation. The rights a law enforcement officer must advise you of are:
- 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 have a lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
The portion of the Fifth Amendment that reads “. . . nor shall be compelled in any criminal case to be a witness against himself . . . ,” is the portion that provides your right to remain silent. A law enforcement officer will ask you if you want to waive your rights and answer their questions, and they will give you a written waiver to sign. NEVER waive your right to remain silent.
SIXTH AMENDMENT: THE RIGHT TO COUNSEL
The Sixth Amendment allows the presence of counsel during all questioning. The Sixth Amendment states as follows: ” 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.”
Simply stated, the Sixth Amendment’s rights are: (1) to know what charges are being brought against you, (2) to a speedy trial by a jury of your peers, (3) to face your accusers and cross-examine them (Confrontation Clause), (4) to call your own witnesses in your defense (Compulsory Process Clause) and (5) the right to a lawyer during all questioning (Assistance Of Counsel Clause).
The Assistance Of Counsel Clause is part of the Miranda Rights that law enforcement officers must read to you before a custodial interrogation. It is important to have a lawyer present during questioning because a lawyer can guide you through the questioning and prevent a costly mistake. NEVER waive your right to a lawyer. Immediately advise law enforcement you want a lawyer.
Invoke your Constitutional Rights. Constitutional rights of the accused exist to protect you in criminal prosecutions.
