Coven Law Site

Criminal Process

What Are My Rights!

Search & Seizure

Investigating a criminal case often involves a search for evidence of the crime. The Fourth Amendment to the U.S. Constitution places important restrictions on the governments right to search a home or a person. Under our Constitution, the police must have a search warrant showing probable cause that criminal activity in the form of evidence is present before being allowed to search a private home without first obtaining the consent of the occupants.

However the right against unlawful searches is not absolute. There are important exceptions to the requirement that the police must first obtain a warrant prior to performing a search. For example, in "exigent or emergency circumstances" police may search a home without consent and without a warrant. These circumstances must include a good faith belief by the police that: a person's life is in danger; evidence might be destroyed; or a suspect may be escaping.

Once a person is arrested, the police are allowed to search the individual and the immediate area around the individual. The rationale of allowing a complete search incident to an arrest is in theory to protect the police from hidden weapons.

Right to Counsel

The Constitution guarantees the right to legal counsel in all critical stages of a criminal proceeding. Both the federal and state justice systems have procedures for the appointment of a public defender if the accused cannot afford to hire an attorney. The Right to counsel also applies during interrogation, sentencing proceedings and in some criminal appeals. The accused may retain an attorney at any stage of their case. Some choose to retain an attorney even before they are formally charged with a crime. Under certain circumstances attorneys can be helpful in persuading prosecutors not to file charges because the evidence is weak or the victim is not credible.

Right to Remain Silent

The Constitution guarantees that no person may be compelled to be a witness against themselves. This is another way of saying you have the right to remain silent rather than incriminate yourself by saying things which the prosecution can use against you at trial. This right also protects you from being forced to testify at your trial and prevents the jury from inferring anything negative about you or your defense because you choose not to testify.

Your Miranda Rights

Although you have the right to remain silent, the police can ask you to waive that right. If you choose to waive your right to silence, the police must first warn you of your constitutional right to silence and your right to have counsel present.. Because of the dangers inherent in clever police interrogation, the justification behind Miranda is to insure the accused makes a "knowing and informed" waiver of rights - before talking to the police. If Miranda is violated, theoretically neither the police nor the prosecutor can use the confession or it's fruits against the defendant. However, in the past ten years the courts have carved out exceptions to the rule, making it easier for the police to obtain coerced confessions.

Right to Confront Witnesses

The right to fair trial depends on your right to confront and cross-examine witnesses relevant to the prosecutors case against you. Your attorney may use the court's subpoena power to compel a witness to court even against their will. The importance of cross examination has been called the "great steam engine to the truth."