If you are arrested and charged with a crime in Florida, you need to know your constitutional and statutory rights to protect yourself from making errors that can significantly damage your defense.
The most important and wide-ranging sources of your legal rights are the Constitution of the United States and the Florida Constitution. The first ten amendments to the U.S. Constitution are better known as the “Bill of Rights.”
A separate blog post can be written about each one of the legal rights of a criminal defendant, but our attorneys at Stechschulte Nell want to make sure you know as much as possible about the rights you will need to assert even before you are arrested:
No Unreasonable Search or Seizure and No Warrant Without Probable Cause
The language in the Fourth Amendment to the U.S. Constitution uses different wording, but the key to knowing is that you do not have to consent to a search of your car or your home if the police ask for your permission. The police will say, “We’ll just get a warrant.” Let them. If you consent to the search, you will not be able to challenge it later.
No Arrest without Probable Cause
Arresting someone is considered a “seizure” of their person, and as we see in the item above, no unreasonable seizure is allowed. Unless there is probable cause to arrest you, the arrest will be illegal. However, do not offer any physical resistance to an officer who is attempting to arrest you. You could commit a separate crime if you resist arrest. Let your lawyer challenge the legality of the arrest in court.
Right to Remain Silent (Don’t Incriminate Yourself)
No person can be “compelled” to testify against themselves. You can legally tell the officer that “I invoke my right to remain silent.” That should prevent any further interrogation, but police often persist in questioning you even after you invoke your right not to speak. Stick to your position until you speak to a lawyer.
Right to Be Advised of Miranda Before Custodial Interrogation
Some people think the police must read your Miranda Rights during every arrest. The law only mandates the police to advise you of your right to remain silent, that your statements will be used against you, and that you can get a free lawyer before any police questioning if you are in custody (not free to leave) when you are questioned. You still have those rights before you’re in custody, but the police don’t have to tell you about them.
You have the right to remain silent> Miranda Rights- What Television Doesn’t Tell You
Free Lawyer Before and During Questioning
You have the right to a free lawyer before any questing, but you need to say, “I want a lawyer.” Asking about getting a lawyer, or mentioning a lawyer is not enough to protect you. You must clearly state that you want a lawyer. Once you do ask for a lawyer, no police questioning is legal until you speak with a lawyer.
Pretrial Release on Reasonable Bail for Non-Capital Offense
Unless you are charged with a capital offense (punishable by life in prison or death), you have a right to be released from custody on the least restrictive conditions that are sufficient to guarantee your good behavior and your future attendance in court. Higher bail and more restrictive conditions can be set in cases involving more serious offenses, out-of-state defendants, or those with prior convictions.
Trial Rights
A criminal defendant has a right to a speedy trial, open to the public, before an impartial jury, with the assistance of an effective defense lawyer.
The trial of a criminal defendant is an extremely important process. Over the past decades, and even centuries, events demonstrated the evils of criminal trials without the legal protections we now insist be in place.
Speedy Trial – The government cannot delay the trial indefinitely, sometimes while the accused is held in pretrial detention. The denial of the accused’s liberty justifies as little delay of the trial as possible.
Public Trial —No secret trials or backroom proceedings can be conducted. The eyes of the public at every significant stage of a prosecution keeps the system accountable.
Impartial Jury — No one who harbors malice or who favors the defendant or the prosecution before the trial begins is permitted to sit on a criminal jury. To filter them from the potential jury pool, a process called voir dire allows each person to be questioned in detail before being selected for a jury.
Effective Assistance of Legal Counsel — Although a criminal defendant has the right to represent themselves, the Constitution and the law developed over decades entitles every defendant to the effective assistance of a lawyer at every stage of the proceedings. Unfortunately, not all lawyers are competent or committed enough to do their duty effectively.
What is so important about having the best lawyer to represent you is that all the other rights depend on someone knowing how, when, and where to demand them. Criminal Defense lawyers are a rare breed, a small minority of all the lawyers practicing law in America.
Experienced criminal defense lawyers ensure that their client is given the full benefit of other constitutional rights like those listed here:
Presumption of Innocence — The jury must extend to every defendant the presumption that they are innocent unless and until they are convinced by the evidence beyond any reasonable doubt that the person is guilty.
Prosecution Has Burden — The defendant does not need to prove anything. Nor does any defendant need to present any evidence or any testimony from any witness. The prosecution carries the entire burden of proof. If any single required element of the crime is not proven, the jury must vote not guilty.
Testify in Your Own Defense — Every defendant has the right to testify in their own defense even though they have an absolute right not to do so. It is the defendant, not the defense counsel, who makes the final decision whether to testify. If they choose not to testify, no jury member can use their failure to testify against them or consider it at all in adjudging guilt or innocence.
Confront and Cross Examine Prosecution Witnesses — The defendant has the right to confront and cross-examine any witness whose testimony or evidence is presented against them.
Compel Your Witnesses to Attend Trial by Subpoena — The defense is also entitled to force any defense witnesses to come to court to testify if their testimony will favor the defendant. Many people may not want to get involved. The law guarantees that the defendant can subpoena any witness. If they fail to appear once subpoenaed, they can be arrested and punished for contempt of court.
Appeal — Criminal defendants also have the right to appeal to a higher court if they are found guilty. The appellate courts will review the record of the trial to determine if any of the defendant’s rights were violated, or if the trial was flawed in some way that compromised its fairness.
If your criminal defense attorney fails to raise the proper objection in the proper manner at the proper time, your claim that your trial was legally flawed may be waived. That’s why you need to have the best, most experienced criminal defense trial attorney you can find.
Accused of a Crime?
If you or someone you love has been accused of a crime, lean on our attorneys at Stechschulte Nell. We are on your side. Call 813-280-1244 for a case review today.
