Defendant's Rights

The police do not decide your charges; they can only make recommendations. The prosecutor is the only person who can actually charge you. Remember this the next time the cops start rattling off all the charges they're supposedly "going to give you."

 

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, however, you still could be detained or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a recent burglary site. Storekeepers also can detain you for a reasonable period if they suspect you have stolen something.

 

Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested

 

Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.

 

 

You have the right to remain silent.

Anything you say may be used against you.

You have a right to have a lawyer present while you are questioned.

If you cannot afford a lawyer, one will be appointed for you.

These are your Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. And this does not apply if you volunteer information without being questioned by the police.

 

 

Do not discuss your case with anyone other than your lawyer. Not even your friends, family, members, or cellmates. What you say can be used against you.

Do not call or make any contact with any law enforcement agency, District Attorney, or City Attorney without first consulting with your Attorney.

Immediately identify and locate any potential witnesses that may have any information that will help your lawyer.

If contacted by any law enforcement investigation, immediately and politely refuse to answer any questions without your lawyer present.

Never consent to any search or turn over anything to law enforcement without consulting with your lawyer first.

Everything you tell your lawyer is confidential and will not be used against you. Be truthful and communicate thoroughly with your lawyer.

After I am told my rights, can I be questioned? 

You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, the questioning must stop as soon as you say so or as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.

 

You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver's license will be suspended and the refusal will be used against you in court.

 

Once you have been booked, (meaning your arrest has been written into official police records, and you have been fingerprinted and photographed) you have a right to make and complete three free telephone calls within the local dialing area. Any additional calls made from jail must be collect calls.

 

All law enforcement officers (such as police officers, county sheriff officers, investigators in a district attorney's office or an attorney general's office, and highway patrol officers) can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.

 

They can arrest you even if they do not have an arrest warrant if they have probable cause or good reason to believe you committed a felony. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable with a fine or short jail term.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.

 

If you commit an infraction, they may ask you to sign a citation or notice instead of taking you into custody. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.

 

Any person, such as a private security guard, can make a citizen's arrest if he or she sees a misdemeanor being attempted or committed. He or she also can make a legal arrest for a felony as long as it actually was committed, and he or she has good reason to believe you did it. He or she must take you to a police officer or judge who is required by law to take you into custody.

 

Right to an Attorney - Defendants have the right to an attorney throughout legal proceedings. The court will appoint an attorney for the defendant at no charge if he/she cannot afford to hire one. Yet, at the end of the case, they may be asked to pay all or part of the cost for that attorney, if he/she can afford to.

Right to a Jury Trial - Defendants have the right to a speedy, public jury trial. At the trial, the defendant is presumed innocent, and cannot be convicted unless 12 impartial jurors have been convinced of the defendant's guilt beyond a reasonable doubt.

Right to Confront Witnesses - Defendants have the right to confront and cross-examine all witnesses testifying against them.

Right Against Self-Incrimination - The defendant has the right to remain silent, to prevent self-incrimination, and the right to testify on their own behalf.

Right to Produce Evidence - The defendant has the right to present evidence and to have the court issue a subpoena to bring into court all witnesses and evidence favorable to them, at no cost to them.

 

Usually, a warrant is required before you can be taken into custody from within your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone's life or seriously damaging property. An arrest warrant must be signed by a magistrate or judge, who must have good reason to believe that you committed a crime.

 

Once an arrest warrant is issued, any law enforcement officer in the state can arrest you even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.

 

Before entering your home, a law enforcement officer must knock, identify him or herself and tell you that you're going to be arrested. If you refuse to open the door or if there's another good reason the officer can break in through a door or window.

 

If the police have an arrest warrant, you should be allowed to see it. If they don't have the warrant with them, you should be allowed to see it as soon as is practical.

 

The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

 

Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.

 

If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not be recorded as an arrest.

 

An officer can always conduct a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.

 

Body Searches 

If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods, and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.

 

In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms and even other parts of the same room are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which is in plain sight.

 

Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason such as a broken taillight they can take any illegal goods in plain sight. If you, your home or your car is searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed. 

 

There are three basic types of encounters with the police: Conversation, Detention, and Arrest.