Know Your Rights

You should know your constitutional and statutory rights regarding government investigations and prosecutions against you. Many people waive rights that would have protected them in a criminal case had they not waived them.Waiving your rights does not help you, even if you think the police officer will hold your invoking your rights against you. The officers really have little or no authority to “help” you once the prosecutor intends to prosecute you. Prosecutors look at mainly one thing: how strong or weak is their case, and what can make their case more difficult is when you (respectfully) invoke your rights.

The most common examples of when people waive their rights in a police investigation is (1) speaking to the police when they have a right to remain silent and (2) consenting to searches of their property. Police officers know this, which is why they typically ask suspects to give up these rights–thus, making their and the prosecutor’s job much easier. Don’t be willing to give up your rights so easily when the police investigate you, but always be respectful.

The following summarize your rights:

1. Constitutional Protections

  • 4th amendment – the government cannot conduct unreasonable searches and seizures. Any evidence obtained in violation of this law can be suppressed; and any arrests or charges made against you in violation of this law can be dismissed.
  • 5th amendment – you have the right against self-incrimination and double jeopardy.
  • 6th amendment – you have the right to a speedy trial, public trial, trial by jury, confront witnesses, and assistance of counsel.
  • 8th amendment – you have the right to be free from cruel and unusual punishment.

2. Search and Seizure (4th amendment)

  • 4th amendment applies to government agents.
  • The government’s search and seizure cannot violate reasonable expectation of privacy unless it obtains a warrant.
  • Warrant must be based on probable cause, precise on its face and issued by neutral detached judge.
  • Warrantless search exceptions: (a) incidence to lawful arrest, (b) automobile search, (c) plain view, (d) consent, (e) stop and frisk, and (f) hot pursuit.
  • Search with warrant: (a) without unreasonable delay, (b) knock and announce, and (c) search within the scope of warrant.

3. Admission Statement

  • Voluntary and freely made – no coercion from police. These statements are admissible in trial and can be used again you.
  • If you are in custody, (a) Miranda warning must be given, but it can be waived by you; (b) right to counsel (unless waived), and (c) police may not interrogate after request for counsel.

4. Right to Counsel

  • Pretrial proceedings: (a) custodial police interrogation, (b) post-indictment interrogation, (c) probable cause hearings and (d) arraignment.
  • Trial proceedings: (a) felony trials, (b) misdemeanor if potential for incarceration may result, and (c) guilty pleas.

5. Exclusionary Rule

  • This rule prohibits illegally obtained evidence (“fruit of the poisonous tree”) from being used against you.
  • Exceptions to this rule: if evidence could be obtained by independent source and would have been discovered
  • Does not apply to grand jury testimony
  • Harmless error rule applies, which will allow that evidence to be used against you.

For all your criminal matters, contact Tim Baldwin by clicking here.

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