What are Your Constitutional Rights?

Can you list your constitutional rights? Do you know what your rights are if you are stopped, searched, interrogated, or arrested by the police?

They don’t teach us what our most basic rights are in grade school – why is that? Could it be that our children are getting an education provided by our government, and our government doesn’t want us to know our constitutional rights?

Human history is an unending series of governments taking everything from the people as the people fight for a constitution, representative government, and freedom from oppression.

It’s no surprise that, today in America, 1) schools do not teach children what their rights are, 2) police routinely violate citizens’ rights, and 3) prosecutors and judges routinely attempt to get citizens and their attorneys to waive their rights.

Your Constitutional Rights are Found in the US Bill of Rights

Your federal constitutional rights are contained in 1) the federal constitution and 2) federal appellate opinions interpreting constitutional provisions.

The constitutional rights that most often apply in criminal defense cases are found in the Bill of Rights – specifically, the First, Second, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the US Constitution.

First Amendment

What are your constitutional rights that are contained in the First Amendment?

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.

This includes:

• The right to Freedom of Religion – as long as you are not harming others, you are free to practice any religion you choose,
• The right to Freedom from Religion – the government cannot promote or establish any particular religion (yes, this includes Christianity),
• The right to freely express yourself (as long as your expression does not include “fighting words”),
• The right of journalists to report what is happening without fear of government reprisal,
• The right to assemble peacefully including to protest government actions, and
• The right to complain about government excesses or abuses without fear of government reprisal.

Second Amendment

The Second Amendment guarantees the right of the people to form a well-regulated militia and possibly the right of the people to keep and bear arms outside of a militia:

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.

Yes, yes, the Second Amendment guarantees your right to own a firearm, to carry a concealed firearm without a permit, to openly carry a firearm without a permit, or to openly carry an assault rifle with a 30-round magazine outside of a polling station, depending on your political views.

This is a perfect example of how your Constitutional rights are not only determined by the words written in the Bill of Rights but also by appellate opinions interpreting the constitutional provisions.

The state of Second Amendment rights is currently in flux as the US Supreme Court redefines the limits of the Second Amendment, and many gun cases in South Carolina should be challenged on Second Amendment grounds until the law is settled.

Fourth Amendment

The Fourth Amendment is probably used the most often by criminal defense lawyers:

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.

You have the right to:

• Not have your home or belongings searched without a warrant based upon probable cause, supported by a sworn affidavit, and particularly describing the place to be searched or the things to be seized, and
• Not be arrested without a warrant based upon probable cause, supported by a sworn affidavit, and particularly describing the person to be seized.

This includes the right not to have your vehicle stopped or searched unreasonably, although the courts have found there is an “automobile exception” to the search warrant requirement. Police are not required to get a warrant before searching your vehicle, although there must be probable cause to search, and the courts may review the decision to search later.

Fifth Amendment

What are your Fifth Amendment rights?

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 offense 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.

This includes the right to:

• Indictment by a grand jury before facing trial for a capital or “otherwise infamous” crime,
• Not be tried or punished twice for the same crime,
• Not testify against oneself,
• Due process of law if you are going to be deprived of your life, liberty, or property, and
• Not have your property taken by the government without fair compensation.

“Due process” basically means “fairness.” There is “substantive due process” and “procedural due process,” which essentially means that you should be treated the same as others who are similarly situated and you should have access to the same laws and remedies as everyone else.

Sixth Amendment

The Sixth Amendment contains several constitutional rights:

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.

This includes the right to:

• A speedy trial – although there is no statutory right to a speedy trial in South Carolina, the courts will consider several factors to determine whether your right to a speedy trial has been violated including the length of the delay, the reason for the delay, the complexity of the case, whether the defendant was prejudiced by the delay, and whether the defendant asserted their right to a speedy trial,
• A public trial – this means that the court cannot exclude the public from your court proceedings, including journalists, without good cause,
• An “impartial jury” – this is a joke that is impossible to implement, but we do try through jury qualifications and voir dire,
• A jury drawn from the state and district where the crime was alleged to have been committed,
• Be informed of the accusations against you,
• Be “confronted” with the witnesses against you – this is interpreted as you have the right to require the witnesses to testify in court and to cross-examine the witnesses against you,
• Subpoena (with the assistance of the court) witnesses who will testify on your behalf, and
• A defense attorney – interpreted as the right to effective assistance of counsel at all critical stages of a criminal case.

Eighth Amendment

The Eighth Amendment, in part, deals with punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

It is supposed to prevent the government from:

• Keeping people in jail pretrial by setting high bail that they cannot pay,
• Using fines from criminal cases (like traffic offenses and speeding tickets) to fund government operations, or
• Imposing “cruel or unusual” punishment.

Fourteenth Amendment

The first ten amendments to the federal Constitution are the Bill of Rights. There are more, though, and they are also important.

For example, the Fourteenth Amendment provides a second Due Process Clause, “nor shall any state deprive any person of life, liberty, or property without due process of law,” that makes it clear that the Bill of Rights applies to the individual states as well as the federal government’s actions.

Got Axelrod?

Know your constitutional rights and how the courts will interpret them – before you get pulled over or interrogated by police.

If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal, or if you won an appeal and need help retrying your case, call now at 843-353-3449 or email us online to speak with a criminal defense lawyer on the Axelrod team today.