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The Constitutions of the United States and Oklahoma each guarantee our citizens certain basic rights, including the right to counsel, the privilege against self-incrimination (i.e., the right to remain silent), the right to be free from unreasonable searches and seizures, etc. In matters of criminal law and investigation, you must know your rights. (See the Bill of Rights below.) You should also follow my simple rules to protect your rights. (See Wyatt’s Tips and Instructions below.)
Right to Counsel: The Sixth Amendment gives you the right to have counsel before giving any statements or submitting to questioning. Exercise your rights. You NEED an attorney BEFORE you make any statements to the police. This is your most important right. If you cannot afford counsel, the court is required to appoint counsel. Note that in Oklahoma County and many other counties, if you post bail the judges generally will not appoint counsel on the theory that if you can afford to bail out of jail, then you can afford an attorney.
Right to Remain Silent: The second most important right is a right you control completely. You are not required to talk to the police when questioned about a crime. Exercise your rights. Do NOT give a statement. The Fifth Amendment and the Miranda decision of the Supreme Court generally state that the Fifth Amendment protects the innocent man, as well as the guilty. Anything you say likely will be tape recorded or videotaped with or without your knowledge. Likewise, do NOT discuss facts of an alleged crime with family members, friends, co-workers, spouses, children, your accountant, etc. There is no privilege to protect your statements to these persons, so exercise your right to silence.
Right to be Free From
or Seizures: The Fourth Amendment protects you from unreasonable searches and seizures. Unless an officer presents proper credentials and a search warrant, do NOT allow any search of your body, home, garage, business, computer, car, boat or other dwelling or conveyance or property. ONLY if the police have a valid search warrant is it appropriate to give permission to search. If there is a warrant, ask to read it. Then ask the officers if you may watch as the police search and ask to call your lawyer before the search. You never know whether your spouse, children or perhaps a friend or acquaintance (even a stranger) may have placed or left contraband or other evidence of a crime in or on your property. Although less likely, a “bad” cop might “plant” evidence; therefore, NEVER allow a search without a warrant. If asked whether it will be okay to search, say “no” and call your lawyer.
Right to Bail: Generally, you have the right to a reasonable bail if arrested. The primary issues should be whether you are a risk of flight or a danger to the community. In Oklahoma County, there is a standard bail or bond schedule which is generally applied, but bond is occasionally denied. Note that in Oklahoma County and many other counties, if you post bail the judges generally will not appoint counsel on the theory that if you can afford to bail out of jail, then you can afford an attorney.
Right to Subpoena:If you choose to demand a trial, you have the right to compulsory process or to subpoena witnesses, regardless of whether the witness agrees to cooperate. If you serve the witnesses with process, they must attend hearings and give testimony (thus the right of confronting your accusers). You have only a limited right to subpoena witnesses or documents at a preliminary hearing.
Right to a Speedy and
Public Trial: The Sixth Amendment guarantees a “speedy trial” without unreasonable delays. This does not mean that you receive an immediate trial, but factors are analyzed to determine whether the delay is reasonable and whether there is any prejudice caused by an unreasonable delay. Also, your trial must be open to the public (except in certain juvenile settings).
Right to a Trial by Jury: You are entitled to a jury trial, unless both you and the government agree to a trial before the judge (a “bench trial”). If you demand a trial, a jury of six or twelve qualified persons must be empanelled to hear your case depending on whether it is a felony or a misdemeanor.
Right to a Unanimous
Verdict: To be convicted, the jury must unanimously find you guilty beyond a reasonable doubt. In most felony cases, twelve people must agree that you are guilty of the crime charged; otherwise, you cannot be found guilty. If the jury reaches an impasse, the jury may be hung or split. Under these circumstances, you can be tried again.
Right to be Free from Subsequent Trials
(Double Jeopardy): The Fifth Amendment states that no person be put in jeopardy twice for the same offense. If the jury unanimously agrees that you are not guilty, then you cannot be tried again for that crime.
Right to Appeal: Generally, you have an appeal of right if you are convicted at trial. If you enter into a plea bargain or if you simply plead guilty, you may waive certain rights to appeal. You have the right to counsel on appeal and if you cannot afford an attorney, one is generally appointed for your first appeal. You generally do not have the right to counsel for second or subsequent appeals.
Right to Due Process: Generally speaking, this means that you must be given the opportunity of a fair trial or to fair procedures and that certain rights or privileges or property cannot be taken from you except under special circumstances.
Right to Equal Protection: This right is intended to give all persons, regardless of race, creed, nationality, religion or gender, the same protections or rights. In other words, no person or class of people shall be denied the protections enjoyed by others or classes in like circumstances.
The First Ten Amendments to the United States Constitution
Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
We recognize that most law enforcement officers protect the public by investigating and prosecuting crimes. Some officers, however, can misinterpret your actions or statements, or they can be overzealous during an investigation. Police officers and other law enforcement wield significant authority, but they must observe your rights if you exercise them. Some important rules to follow include:
Hire an Attorney: As soon as possible, talk to and hire an attorney. You NEED an attorney BEFORE you make any statements to the police.
WYATT’S TIPS & INSTRUCTIONS
Be polite and courteous with police: Don’t give any reason to escalate the situation. Don’t complain about the stop or arrest or ague with the police. Stay calm; control your emotions. Stay in view of the officers, keep your hands in plain sight, and don’t make any quick or jerky movements.
Ask if you are under arrest: If placed under arrest, you have the right to be told why you have been arrested. Also ask for the officer’s name and badge number and remember the patrol car number if possible.
Do NOT give a voluntary statement: You are NOT required to talk to the police when questioned about a crime. Exercise your rights because you cannot be prosecuted for refusing to give a statement, but you can be prosecuted for giving a false or misleading statement. If you do give a statement, it can be used against you. The Miranda warnings do NOT apply to voluntary statements. If you are not under arrest or otherwise “in custody,” then those statements can be used against you even without reading the Miranda warnings (“your rights”) to you. Anything you say likely will be tape recorded or videotaped with or without your knowledge. To avoid problems and legal fees later, don’t give any voluntary statements. Likewise, do NOT discuss facts of an alleged crime with family members, friends, co-workers, spouses, children, your accountant, etc. There is no privilege to protect your statements to these persons, so exercise your right to silence.
Do NOT resist arrest or touch the officer: Even if you are innocent, do NOT resist arrest. It will only add more charges and make your legal situation more difficult for your lawyer. Do NOT touch or threaten the officer, as the police will add “assault & battery on an officer” charges, which alone carries significant punishment. Do NOT “run” under any circumstances. If you run, innocent or not, the jury can be told you fled the scene.
Do NOT interfere with or obstruct the police: Do NOT interfere with the officer’s investigation or interrupt the officer while he/she is interviewing others or searching. Generally speak only when asked (see above–do not give a voluntary statement) and do not assist in showing items or documents or explaining what happened. Do NOT attempt to obstruct the officers in their duties or to destroy evidence or contraband. Keep to yourself and mind your business. Interfering or obstruction an officer in his official duty is a separate crime.
Do NOT allow searches or seizures: The Fourth Amendment protects you from unreasonable searches and seizures. Unless an officer presents proper credentials and a search warrant, do NOT allow any search of your body, home, garage, business, computer, car, boat or other dwelling or conveyance or property. ONLY when the police have a valid search warrant signed by a judge is it appropriate to give permission to search. If there is a warrant, ask to read the papers before granting permission so that you know the scope of the warrant. Then ask the officers if you may watch as they search and ask to call your lawyer before the search. You never know whether your spouse, children or perhaps a friend or acquaintance (or even a stranger) may have placed or left contraband or other evidence of crime in or on your property. Although less likely, a “bad” cop could also “plant” evidence; therefore, NEVER allow a search UNLESS the office has a warrant. If asked whether it will be okay to search, JUST SAY NO!
Do NOT give any samples–Body Fluids, Blood, Fingerprints, Handwriting Samples, Clothing or Shoes, etc.: The Fourth Amendment protects against unreasonable searches and seizures, and the Fifth Amendment protects against self-incrimination. While these samples may possibly be compelled by the court, do NOT give samples (1) without obtaining a lawyer to represent your interest, or (2) without a court order. Even with counsel, there are situations when samples simply should NOT be given. Samples given with your permission are admissible in court. Also be careful because forensic sciences are not without fault. There are numerous cases in Oklahoma (i.e., the Jeff Pierce/Joyce Gilchrist matter) and throughout the U.S. where innocent people have been wrongfully convicted and even sentenced to death on flimsy hair or other samples. BEWARE.
There is one EXCEPTION to this rule. You are required by law to give a breath or blood sample for an alcohol-related offense (DUI, DWI, or APC or an injury-accident). If you refuse to be tested, it can result in loss of your driver’s license and/or negatively impact your criminal charges.
Do NOT take a polygraph or lie-detector test: A polygraph is NOT admissible in court. Even if you pass a polygraph, police will not necessarily clear you. Because there are ways to “beat” the test, the police will not rule you out after the test if you are a suspect.
Do NOT give press interviews: Americans are naturally drawn to the spotlight when given an open microphone. You have the First Amendment right to free speech but consult your attorney BEFORE giving press or other interviews. Your attorney must weigh the options before commenting on the facts. There are times when it may be appropriate and recommended to cooperate with the press, but timing is everything. If contacted by media, you naturally will want to “clear” your name. Do not let the camera or reporter entice you. Your comments could end up on the editing room floor. Consult counsel first. Counsel must be media savvy to protect your interests in high profile or no-profile cases. Let them do the talking.
Be truthful with your attorney: Your attorney cannot help you unless the attorney knows the facts. You may think you can “protect” your interests by withholding information from your attorney, but that generally results in your attorney being surprised at inopportune times, such as during a hearing, deposition or trial.
No “Right” to Plea Agreement: There is no right to a plea bargain under either state or federal law. While most criminal cases in the United States (perhaps 90-95%) are resolved by some type of plea (either with a plea agreement or by “blind” plea to a judge), the client has no entitlement to a plea agreement. Plea bargains are generally left to the discretion of the prosecutor in both state and federal courts, but there are usually negotiable issues in any case. However, judges reserve the right to accept or reject a given agreement — regardless of whether the parties reach an agreement. Also, in both state and federal courts, there may be some statutory or constitutional limitations placed on the potential terms of the plea bargain. If the prosecutor is not willing to negotiate, there is no statutory or constitutional right to a plea bargain. If the client demands to enter a plea, he or she may plead “blind” to the judge (asking for mercy from the court) or take the matter to trial.