Know Your Legal Rights

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If you have you been arrested and/or received a court date to appear in court you may want to get informed about your legal rights and the criminal procedure process.

What are your legal rights?

    • Right to Counsel:  The Sixth Amendment of the U.S. Constitution provides that the accused in all criminal prosecutions shall have the “assistance of counsel for his defence”.  Generally if an individual has been brought before the court on charges in which a jail sentence may be imposed the court may appoint the public defender if the person cannot afford to retain a private attorney.
    • Right to Remain Silent:  The Fifth Amendment of the U.S. Constitution states in part: “No person shall be compelled to be a witness against himself.”
    • Right of Presumed Innocence:  The Florida Rules of Criminal Procedure Jury Instructions provide:  “The constitution requires the State to prove its accusations against the Defendant.  It is not necessary for the defendant to disprove anything.  Nor is the defendant required to prove his or her innocence. It is up to the State to prove the defendant’s guilt by evidence.”
    • Right to a Speedy Trial:  The Sixth Amendment of the U.S. Constitution provides in part that:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”.  If the charge is a misdemeanor the trial must be brought within 90 days of arrest.  If charged with felony the person shall be brought to trial within 175 days of arrest.
    • Right to a Jury Trial:  Florida State Statute 918.0157 states: “In each prosecution for a violation of a state law or a municipal or county ordinance punishable by imprisonment, the defendant shall have, upon demand, the right to a trial by an impartial jury in the county where the offense was committed, except as to any such prosecution for a violation punishable for a term of imprisonment of 6 months or less, if at the time the case is set for trial the court announces that in the event of conviction of the crime as charged or of any lesser included offense a sentence of imprisonment will not be imposed and the defendant will not be adjudicated guilty, unless a right to trial by jury for such offense is guaranteed under the State or Federal Constitution.”
  • Right to testify on one’s own behalf:  If a person elects to testify during trial the jury is instructed to “apply the same rules to consideration of his or her testimony that you apply to the testimony of the other witnesses.”  Florida Rules of Criminal Procedure Jury Instructions.
  • Right to cross examine and confront witnesses:  The Sixth Amendment of the U.S. Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him; to have compulsory process for obtaining the witnesses in his favor…”

 

 

What happens during the criminal procedure process?

  • Arrest:   This occurs when a person is physically taken into police custody and booked into jail.  The booking officer may set a bond in accordance with the charge(s).  In some cases depending on the type of charge the person may not receive an initial bond.
    • Notice to Appear:  A person may be given a Notice to Appear in court by the police officer in lieu of a physical arrest.  The notice will contain a court date in which the person must appear before the court. The person will be referred to as Defendant during the criminal proceedings.
    • First Appearance:  This occurs within 24 hours of arrest in which the defendant will be brought before the Judge.  The Judge will inform the defendant of the charge and advise the defendant that they are not required to say anything and anything the person says in court may be used against them.
    • Bond:  A defendant may bond out of jail by a licensed bail bond agent.
    • Pre Trial Release:  If the bond amount is set and the person is in need of a reduction a bond reduction hearing must be held.  The court will determine if the bond amount should be reduced.  There may be certain conditions imposed upon the person as a part of the pre trial release.  A defendant may also be released on their own recognizance if they meet certain criteria.
  • Arraignment:  This is generally when the defendant will be informed of the charges and have the opportunity to enter a plea of guilty, not guilty, or nolo contest.  Before you go to court is may be prudent to speak with an attorney about your case and determine if you need legal counsel before going any further in the court process.
    • Pre Trial Hearing:  This court hearing comes after the arraignment and serves as a  hearing before the case proceeds to trial.  In some jurisdictions it may be referred to as a disposition hearing.   If you have retained counsel your attorney may be still in the process of getting necessary discovery information from the prosecutor or possibly working to negotiate a plea deal on your behalf at the pre trial hearing.  Sometimes the case may be resolved at the pre trial hearing however this depends on the facts and circumstances of your case.
    • Discovery:   A defendant may elect to participate in the discovery process.  Upon written notice to the prosecutor the State shall disclose and permit the person inspect, copy, test, and photograph any of the items listed in the State’s possession or control.  Discovery may be in the form of  police reports, photographs, witness statements, dna, drug lab results, video recording,  audio recording, and depositions.  This list is certainly not inclusive and many cases will not require or have an extensive list of discovery items.  The type of discovery depends on the case and nature of the charge.
  • Trial:  Not every case proceeds to a trial.  A trial may be in the form of a non jury trial or a jury trial.

 

DIFFERENT TYPES OF POLICE ENCOUNTERS:

If you have been the subject of a criminal investigation, have been questioned by the police, or have been arrested it is critical that you fully understand your legal rights during each phase of the criminal process.

There are generally three ​types of encounters​with the police: consensual, investigatory, and arrest.

A consensual encounter occurs when an individual consents to interaction with law enforcement and can decide to speak or not speak with the police. This occurs when the person freely and voluntarily provides information to the police. The key is a reasonable person would feel free to leave during a consensual encounter.

An investigatory encounter occurs when the individual is not free to leave and the officer has reasonable suspicion to believe that the person was about to commit a crime, is committing a crime, or had committed a crime.

During an investigatory encounter the police may begin to ask incriminating questions of the individual which would require the reading of M​iranda​prior to asking of any questions. The Miranda rights are derived from case law and the Fifth Amendment of the ​U.S. Constitution which states in part: “no person 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.”

An arrest occurs when the officer has probable cause to believe that the person has committed a crime and the officer takes the individual into custody. This can occur if the officer actually witnesses the crime or develops sufficient probable cause to believe the person committed the crime, or if law enforcement has an arrest warrant for the individual. At this point the person is not free to leave and the person usually will remain in the care and custody of the police until they are released from jail.

Search and Seizure derives from the Fourth Amendment of the ​U.S. Constitution ​which provides “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.

The interest to be protected by the Fourth Amendment is an individual’s right to privacy. Not every encounter, arrest, or search and seizure by the police presents a legal issue. Since each case presents a different set of facts it may be prudent to speak with an attorney to understand the nature of the charge, the legal consequences, legal defenses, and the criminal process.

 

Disclaimer:  The content discussed is intended for informational purposes only.  Any information should not be considered legal advice or substituted for legal advice.  The information provided is intended as a brief informational overview of the criminal procedure process.  For a more comprehensive understanding of the criminal procedure process you may wish to consult with an attorney.   The sharing of this information does create an attorney client relationship.  The hiring of a lawyer is an important decision and should not be based upon advertising alone.  Before you decide, ask the lawyer about their qualifications and experience.