Freeze! Do you know your constitutional rights in a criminal case?

Most Americans know that they have constitutional rights in a criminal investigation and case. But do you know which rights or the broader scope of your rights? It’s OK, most folks don’t. So here’s a crash course in criminal procedure.

In short, your most important or applicable rights during a criminal case pertain to the Fourth, Fifth, and Sixth Amendments to the United States Constitution. There are libraries of cases and legal analysis dealing with each of these very significant Amendments. Entire law school courses could be taught on each. In a nutshell, however, here are the basics.

4th Amendment

The 4th Amendment protects you against unreasonable searches and seizures by the government. When an officer, for example, looks inside your bags, your pockets, your car, your home, takes a blood sample, etc. (you get the idea), that’s considered a “search.” Whether a search in a particular case was unreasonable—and thus in violation of the 4th Amendment—is a legal question that’s determined on a case-by-case basis. That means whether a court finds a violation depends upon the facts of a particular case. Lawyers battle over these matters all the time. The rulings are significant. If a judge decides that an officer’s search was unreasonable, the evidence collected is consequently “suppressed” (meaning kept out) from evidence. That means that the prosecutor may not introduce the illegally obtained (or "tainted") evidence at trial because, to borrow the oft-cited language from Wong Sun v. United States, a landmark U.S. Supreme Court case from 1963, it's considered the "fruit of the poisonous tree." As you can imagine, if a key piece of evidence is suppressed from trial, that often means the prosecutor’s case is toast.

If we're protected from unreasonable searches and seizures by the government, what then is a “seizure”? Put simply, it's where an officer seizes something. In other words, there’s a difference between simply seeing a piece of evidence and actually collecting it. Often, however, they go hand-in-hand. Most officers, when they see evidence of a crime, tend to take and inventory the piece of evidence. Also, seizure doesn’t only apply to objects; it includes people. So, if an officer detains you for an unreasonable period of time, for example, the constitutional right violated is your 4th Amendment right to be free from unreasonable searches and seizures. Again, what’s considered “unreasonable” is an evolving and heavily debated legal issue.

The last main point to make about the 4th Amendment is that it states that “probable cause” is required to issue a warrant to search or arrest you. In plain English, probable cause means that there’s enough evidence for an officer to reasonably suspect you probably committed the offense—in other words, it’s more likely than not that you did it. By comparison, the threshold of probable cause is a much lower standard than the burden of proof at a criminal trial where proof beyond a reasonable doubt is the threshold for a conviction, or at least supposed to be.

Although the 4th Amendment talks about warrants, it’s important to understand that MOST cases do not involve a warrant. Sure, in cases where the police come to search a suspect’s home or workplace, warrants are typically involved. But think about the thousands of cases everyday across this country that stem from a traffic stop or an officer simply being called out to home or business. In the normal course of police work, investigations lead to arrests all the time without any warrants involved. How can this be given the language of the 4th Amendment? The answer is that there are A LOT of exceptions to the warrant requirement. I won't get into the exceptions here; I'll save that discussion for another day.

5th Amendment

The 5th Amendment pertains to your right against self-incrimination—in other words, your right to remain silent. If you're being investigated for a crime, you're not required to talk to law enforcement. Further, if you're accused of a crime, you can choose not to testify and the government cannot use evidence of statements you may have made outside of court if they resulted from a violation of your "Miranda rights."

Proper Miranda Warnings

Whether from TV or real-life experience, most people have heard of “Miranda rights.” If arrested or placed in custody, officers must "Mirandize" you before interrogating you any further—in other words, questioning you on matters that can lead to you incriminating yourself. The phrase “Miranda rights” was coined in reference to Miranda v. Arizona, a very important 1966 U.S. Supreme Court case involving police interrogation after an arrest. Most officers have these rights committed to memory or will read from a card to ensure they don’t miss anything. The rights are fundamentally simple:

1. You have the right to remain silent;

2. Anything you say can be used against you in a court of law;

3. You have the right to an attorney;

4. If you cannot afford an attorney, one will be provided to you at no cost.

It doesn’t matter if the officer's exact wording is slightly off or the list of rights if given out of order. As long as the officer touched all the points in general, it's proper. Once you indicate that you are exercising your right to remain silent, the questioning must stop immediately.

Surprisingly, a lot of folks still talk to law enforcement after they are arrested. Despite their right to remain silent and have an attorney present during questioning, they instead admit all kinds of incriminating things. There are a number of reasons why. For example, many are simply nervous. Also, many falsely believe that, by being honest, the officers will help them to get their charges dropped or reduced. But make no mistake, officers will generally do you no favors. And, it’s important to understand that it’s perfectly legal for officers to lie and use trickery when they're questioning you and trying to get you to admit things. So, it’s very common—in fact it’s good police work—to pretend to know more than they do when questioning a suspect. As a good rule of thumb, the more you talk, the worse your case is likely getting.

Proper Waiver of Rights

Odds are that if you talked after being Mirandized, your statements are coming in as evidence against you at your trial. But not always—for statements to be admissible, there must have been a proper "waiver" of rights. Waiver means you've given up the right to remain silent, or, in other words, that you consented to talk in spite of your right not to say anything. If the prosecutor later on at your trial wants to introduce into evidence a statement you made after being Mirandized, the waiver requirement forces him or her to show that you not only understood your Miranda rights, but also voluntarily waived them prior to making the statement. If a judge decided, for instance, that the officers exerted improper pressure to get you to agree to talk, the statements (or "admissions") may be excluded from evidence. That means that the jury will never hear those statement at trial.

By the way, admissions are not necessarily the same as confessions. Admissions are where an individual provides even the slightest nugget of information or evidence. Confessions, on the other hand, are where an individual provides either a full written or recorded statement detailing the fact that he or she committed an offense. For instance, you can deny that you felt the effects of alcohol, but at the same time admit that you drank two beers. That's an admission to consuming some alcohol, not a confession that you were, in fact, drunk driving.

Fun side note: As a former prosecutor, I noticed, almost to a comical level, that the vast majority of DUI suspects told officers that they’ve only had "two beers." Ask any officer who regularly performs DUI investigations and he or she will agree. Folks seem to think that by admitting to drinking two beers, they're providing the perfect response—one that makes them sound honest while not admitting the full extent of what they truly drank. Instead, they end up sounding like a broken record to law enforcement and, typically, get arrested.

Here’s an example of your 5th Amendment rights in action: Let’s say you just got placed under arrest for DUI, handcuffed, and put in the back of a patrol vehicle. However, the arresting officer doesn’t immediately read your Miranda rights. Instead, after an hour he asks, “Why did you drive drunk tonight?” and you respond, “I knew I shouldn’t have been driving; I had way too much to drink.” Later at your trial, the DA will seek to introduce that statement into evidence.

Here, any decent defense attorney will seek to exclude your statement from evidence. Why? Because in this example, you were arrested and then, very arguably, questioned while in custody without being Mirandized yet. It doesn't matter that you weren't sitting in jail; being handcuffed in the back of a patrol vehicle can certainly qualify as "custody." Also, it doesn't matter that it was just one simple question. The fact remains it was designed to potentially elicit an incriminating response and thus counts as an interrogation. In other words, a custodial interrogation, which necessitates Miranda warnings, does not require showing that you were trapped in some dark dingy interview room with an unruly detective who shined a bright light in your face while grilling you question-after-question like you see in movies. For purposes of the hypothetical case here, your lawyer should argue that the officer's one question while you sat in the patrol car was a custodial interrogation and thus the officer should have explained your Miranda rights first. If the judge agrees, your admission will be suppressed from evidence meaning the DA can’t ask the officer about it. And that’s a very powerful defense tool for your case.

6th Amendment

Lastly, and briefly, the 6th Amendment pertains to your fundamental procedural rights after you’ve been arrested and accused—to have a speedy trial, to have a lawyer, to have an impartial jury, to know the nature of the charges against you, and to cross-examine the witnesses that have accused you. I’ll have to save my explanations of those particulars for another day. But it's good to be generally aware that the government, even if you're properly arrested, can't simply lock you up and throw away the key.

Concluding Thoughts

The bottom line is that law enforcement officers and other players in the criminal justice system mess up. It happens all the time—not maliciously, necessarily. A skilled defense attorney must spot the mistakes and vigorously advocate to exclude from evidence the things that were illegally searched and seized in violation of your 4th Amendment rights as well as the statements that were obtained in violation of your 5th Amendment rights. And if any procedural mistakes occur in the prosecution of your case after you’ve been arrested and charged, the odds are your 6th Amendment rights have been violated.

So there you go—now you're equipped with some more knowledge about your basic constitutional rights in a criminal case. And knowledge, as they say, is power. But so is having a good lawyer by your side.