Know Your Constitutional Rights in a Criminal Court Case

You have both State and Federal Constitutional rights & protections.

As an American citizen you are protected from being abused by the legal system. The right attorney can ensure that you receive fair treatment and justice.  Let’s review some important constitutional rights that you have and some of the rules that apply to those rights.

1.  The right to remain silent.

No one can force you to give testimonial evidence.  If accused of a crime and detained or arrested, you must be advised of your Miranda rights before a police officer can question you.  The failure to advise you of your rights if you are in custody and being interrogated causes any statements that you make to police officers to be tainted, suppressed and unusable as evidence because the evidence is ‘fruit of the poisonous tree’.  Common exceptions or mistakes made by clients:

  1. If you volunteer the information without being interrogated, Miranda does not apply.
  2. If you are not in custody, i.e. would a reasonable person believe that he or she was in police custody at the time of questioning?, then Miranda does not apply.
  3. Miranda does not apply to non-testimonial matters such as bodily fluids, blood, hair, DNA.

2.  The right to speak with an attorney.

If you find yourself in a situation where you feel threatened or accused by police officers, you can terminate any questioning by them by unequivocally demanding to speak with your attorney.  If you do not have an attorney, you simply tell the officer that I want to speak with an attorney and I am refusing any further comments or statements.

If you make this statement, then shut up, you are done.  If you continue talking you may volunteer information that can be used against you because you offered the information without being questioned.   You cannot hem and haw around and suggest that you might want to talk to an attorney.  The law requires that you unequivocally ask for an attorney!!!

3.  A Pirtle right to counsel in Indiana.

In Indiana, you can consult with an attorney before you determine if you are going to give consent to a police search or not.  Often-times officers will not have probable cause or sufficient evidence to justify a search of a suspicious area, they will simply ask the person for permission to search and despite the illegal evidence present, many persons consent to that search!!!  You can ask to speak to counsel unequivocally before agreeing to any consent search in Indiana.

4.  A right to trial by jury.

In Indiana misdemeanor cases, you must demand a jury trial in writing within 10 days of the first scheduled trial date or you are deemed to waive your right to jury trial.  (see Sam Shapiro’s appellate case entitled Combs v. State) Juries find people not guilty 20 % more often than judges and many lawyers joke that bench trials or trials to the judge are simply slow guilty pleas.  Do yourself and your attorney a favor, demand a jury trial in writing and preserve that right.  A jury trial is also a bargaining chip for obtaining more favorable treatment from most prosecutors.  Jury trials involve great effort and hard-work.

5.  A right to confront and cross-examine witnesses.

Indiana law allows your attorney to see, hear, and question the witnesses who will testify against you both at trial and in a pretrial discovery process called depositions.  This important constitutional right preserves your right to assess the strength of the State’s case and the strength of your own case as you make important decisions about trial or plea agreement.  Many a witness faced with the prospect of cross examination by your attorney will retract or recant the serious allegations made against you rather than appearing to be a liar in court.

6.  The right to see the charges filed against you, and see the evidence that the State intends to use to convict you.

Basic due process allows you to see the charges filed against you so that you can prepare your defense to those charges.  Indiana is a liberal state in the sense of allowing you to see the State’s file, the evidence, the witness statements, any videotape, any scientific or other tests performed.  All of this allows you to know in advance what the evidence is likely to be as you prepare your defense.  Also, a rule called the “Brady” rule from federal law, strictly requires the State to give you any evidence that the State uncovers that is exculpatory to you, i.e., evidence that tends to show that you did NOT commit the crime you are charged with.