Defendant's rights

By Jeff Goldfarb

Defendant's Rights Even before you are charged with a crime, you have rights.  

The Fourth Amendment to the United States Constitution, part of the Bill of Rights, protects the public from unreasonable searches and seizures by the government.  Law enforcement may only search your home or car if they have a warrant, signed by a judge.  While this would seem to be a simple concept, there are a considerable number of exceptions.  Police are trained in this area and you need a lawyer who understands the law.  Getting sounds, good advice can make all the difference.

The Fifth Amendment provides, among other rights, that you cannot be forced to be a witness against yourself.  Put simply, this is the Amendment that allows you the right to refuse to speak with a police officer.  “You have the right to remain silent,” a phrase we hear often on television, is actually derived from the Fifth Amendment.  

The Sixth Amendment requires you be told about the nature and cause of any accusation against you, that you have a right to confront the witnesses against you (at trial) and, most importantly, that you have the right to an attorney.

We hear the rights above and others on TV all the time.  Most people refer to defendant’s rights as Miranda rights.  Miranda v. Arizona was a criminal case in which the Supreme Court interpreted various Amendments to the Constitution.  Many people do not realize “Miranda rights” do not have to be told to you simply because you are being arrested.  Instead, police must inform you of these rights before what is known as a “custodial interrogation.”  Custodial refers to a time when you are not free to leave the police officer’s presence regardless of your location.  Interrogation, as it sounds, is when law enforcement questions you in an effort to get you to make a statement.  The law only requires you be advised of your Miranda rights in this situation.  So, how does all of this apply in the real world?  Consider these examples…

EXAMPLE 1:

A police officer stops your car claiming you were speeding.  After speaking with you, he asks if he can search your vehicle before letting you leave.  You agree and stand outside the car while he searches.  In the car he finds a small amount of marijuana.  Are you protected by the Fourth Amendment as there was no warrant to search your car?  The answer is no.  The search was legal and you will be prosecuted for the drugs.  Why?  Because you “consented” to the search when the officer asked.  By consenting, you waive your right to be protected by the Fourth Amendment.  Had you declined his request to search, the officer would have to arrest you on the traffic offense before being able to search the car, an unlikely scenario.  Knowing your rights is the most important part of this situation.  We take the time to explain defendant’s rights to our clients so they will be well informed and knowledgeable in the future.  

EXAMPLE 2:

A police officer arrests you for assault.  You are taken to the station and are told your Miranda rights and they ask if you wish to waive these rights and make a statement.  You say no and that you wish to have a lawyer present for any questioning.  You are placed back in the cell and are told you will be held until charges can be filed.  A few hours later you are brought back into an interview room and asked if you wish to make a statement explaining your side.  You are told if you just tell them what happened you will be released.  You agree and explain your perspective of the altercation.  You are placed back in the cell and are ultimately charged with assault.  Can your statement be used against you?  The answer is yes, the statement will likely be able to be used against you.  Until recently, the Miranda decision required law enforcement to recite the rights under Miranda to you each time you are questioned.  Recently, however, the Miranda decision has been altered.  While still dependent on the particular situation, in most instances Miranda rights do not need to be repeated each time you are questioned.  More importantly, just because you asserted your right to an attorney the first time, law enforcement is now not bound to that request later.  That is, you must assert your right for an attorney each and every time you are questioned.  What about the “agreement” that if you tell your side you will be released?  This is often one of the most frustrating issues for clients as they believe they had a “deal” with the police officer that secured their release if they made a statement.  As discussed in the Criminal Case Process section in this site, police officers do not have the authority to make “deals,” nor can they agree that you will not be prosecuted.  The key issue for the courts when reviewing the statement you made is if you agreed to talk, regardless of why.  

The safest, best advice a lawyer can provide for a client is to never make a statement unless an attorney is present to advise you.  Often the pressure to speak is overwhelming.  Either you did something and are terrified of the consequences or you did nothing wrong and want to clear yourself.  In both cases, having a lawyer who can review the case and give you sound, clear advice is invaluable.  

The decision to hire a lawyer is an important one, often one of the most important decisions you will make.  Do not rely on websites and commercials when making this decision.  Meet with lawyers, talk with them and decide which lawyer takes the time to explain the law to you.  Find a lawyer you are comfortable talking to and who puts your mind at ease.  We don’t charge to meet with clients as we feel it is important for potential clients to “interview” lawyers.  You need someone you can trust and someone who takes the time to explain the criminal process.  Call us for free to discuss your case.

Jeff@criminallawyermissouri.com

Goldfarb Law Group, LLC
222 South Meramec, 3rd floor, Clayton, Missouri 63105