Wednesday, September 30, 2009

Constitutional Rights upon arrest

Once you have been arrested a number of constitutional rights kick in, both state and federal. We will discuss the federal as they set forth the bare minimum that must be applied to you as a potential suspect.

First, you have the right to be free from unlawful search and seizures. Originally this meant that the police could only search you if they had a warrant. Over time the requirements for a warrant have decreased dramatically. For example officers are allowed to pat down an individual to determine if they have weapons or other potential contraband as these items pose a danger to the police officer. Another area that has been heavily impacted is an individuals right to be free from search in one's car. In general the officer can search the area that the driver could reach in the car, meaning for most cars the entire passenger and back seats.

For an officer to arrest or detain you, they need to have probable cause to believe that you have committed or attempted to commit a crime. This is a very low standard and an officer will generally have no problem meeting this standard. Officers can look at the surrounding area of the defendant, their demeanor, clothing, personal history (if known), etc. If a person is on probation or parole this standard does not apply.

An individual who is arrested also has to have their Miranda rights read to them. I strongly urge you to invoke those rights and not speak to the police until you are represented by an attorney (private or court appointed). Miranda rights are there to protect you, do not ignore them or waive them until represented!

Closely linked to Miranda Rights are the 5th Amendment right to be free from self-incrimination and the right to an attorney. Pleading the 5th is a right that allows an individual to not make statements that are incriminating. Be careful when invoking this right, if you start talking about some other crime or open the door to new questioning by the police you can waive this protection. The 6th Amendment right to counsel is only based on the crime that one is charged with. This right guarantees that one will have an attorney present at critical stages of the criminal proceedings.

There are other rights that attach when one is arrested but the above are probably the most visible and arguably the most important.

Tuesday, September 22, 2009

How it all starts

The first part of any criminal proceeding is always the commission of a crime. You the defendant may or may not have committed the crime. The police or any other executive agency will, generally, not conduct an investigation without a crime having occurred or still occurring. They do not have the manpower or resources to conduct a pro-active investigation. Furthermore, under our system a person cannot be guilty of a crime they have not committed. Criminal law is reactive and punishes actions done.

Once a crime has been committed a number of agencies may get involved in the investigation. Generally it is just the state police, but may include the FBI or ATF to name a few. These executive branch agencies are trained and equipped to conduct extensive investigations into criminal acts.

Lets assume you have been picked up by the police on any number of charges. At this point if you are being arrested the officer must read you your Miranda rights. I urge you to invoke your constitutional right and remain silent and request an attorney. Once you have been arrested a large number of constitutional provisions kick in, which will be discussed in the next posting.

Tuesday, September 15, 2009

Purpose of the Blog

This blog is designed to provide information for individuals or family members of individuals who have been accused of a crime what to expect during the criminal proceedings. The information provided here will also cover some of the most common types of crimes. It needs to be understood that the elements the prosecution needs to prove and the criminal procedure may vary from state to state. However, general characteristics will be occur across the board.

The information provided in this blog is not intended to be legal advice and is solely for informational purposes and if you or a loved one is in custody or charged with a crime seek competent legal counsel for advice. Any postings on this blog do not create a client/attorney relationship and as stated above only constitutes general information.