The moment a person is arrested and charged with a crime they become a criminal defendant. Criminal defendants have rights that begin at that very first moment when they are arrested.

The rights alloted by the United States Constitution and statutes provide information on how the government investigates, prosecutes and punishes criminal behavior. Below is information on the most common rights available to criminal defendants.

Understanding Your Fourth Amendment Rights

The Fourth Amendment protection against unreasonable searches and seizures states that the government must have probable cause for searches and seizures. The rationale is that the police officers may not search a person without reasonable grounds. Additionally, illegally obtained evidence may not be used against a criminal defendant in court.

Understanding Your Fifth Amendment Rights

The Fifth Amendment protects against self-incrimination (the right to remain silent) and double jeopardy:

  • Right to Remain Silent: The Fifth Amendment protection states that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, a defendant may choose to remain silent. 
    • This means that the prosecutor, defense attorney and judge cannot force the defendant to testify. 
    • This right also protects the defendant from self-incrimination, commonly known as Miranda Rights, during arrest and at trial. This protection is exclusive to criminal defendants. A civil defendant may, however, be forced to testify as a witness in a civil case. Criminal defendants have the right to remain silent.
  • Right Not to Be Placed in Double Jeopardy: The double jeopardy clause of the Fifth Amendment states "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." In sum, double jeopardy protects defendants from being put on trial more than once for the same offense. 
    • However, there are two exceptions. First, a defendant may face charges in both federal and state court for the same crime. Second, a defendant can be brought once to criminal court and once to civil court for the same crime.

Understanding Your Sixth Amendment Rights

The Sixth Amendment provides criminal defendants with the right to legal representation, the right to a speedy trial, and the right to confront witnesses:

  • The Right to Representation: The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." Every criminal defendant has the right to adequate legal representation. If a defendant cannot afford a lawyer, a judge will appoint a public defender.
  • The Right to a Speedy Trial: The Sixth Amendment also provides criminal defendants the right to a speedy public trial. This clause does not specify a time limit. Judges often have to decide on a case-by-case basis whether a defendant’s trial was unconstitutionally delayed. 
    • Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial to help ensure a defendant’s rights are upheld.
  • The Right to a Public Jury Trial: The Sixth Amendment gives a person accused of a crime the right to be tried by a jury in an open public forum. This means that the courtroom is open to family, friends, and the press. A criminal defendant also has the right to be tried by a jury of their peers. 
    • Although jury form varies from state to state, all juries consist of members of the community called randomly by the court and selected by the attorneys litigating the case. Generally, a unanimous verdict is required to convict a defendant. In the event of a “hung jury” (juries cannot come to a decision) a prosecutor may chose to retry the case or the defendant may be acquitted (go free).
  • The Right to Confront Witnesses: The Sixth Amendment gives a criminal defendant the right to confront their accuser and witnesses (i.e. “look them in the eye”). This gives a defendant the ability to counter any testimony presented against him through cross examination. 
    • In very rare cases, witnesses avoid the obligation of having to confront the defendant. This is called hearsay testimony, but it is only admitted if it is not being used to prove guilt. 

Understanding Your Eighth Amendment Rights

The Eighth Amendment provides criminal defendants with the right to a reasonable bail and the right against cruel and unusual punishment:

  • The Right to a Reasonable Bail: Bail is set by a judge and must not be excessive.  This means that bail must be equivalent to the severity of the crime and the person’s likelihood of fleeing.
  • The Right Against Cruel and Unusual Punishment: The Eighth Amendment prohibits cruel and unusual punishments if the defendant is convicted. This right guarantees prisoners access to proportionate sentences as well as basic human rights during incarceration.

Should I Get an Attorney If I am Charged with a Crime?

Criminal charges are life changing and it is in your best interest to get counsel. An experienced criminal defense attorney can help protect your rights and represent your interests.

An attorney can help negotiation a fair plea bargain or guide you through the complex trial process. If you have been charged with a crime, asking for a court appointed public defender or obtaining private criminal defense counsel is highly recommended.