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The
U.S. Constitution,
specifically the first ten amendments, commonly called the
Bill of Rights, provide certain certain rights to individuals
and especially attempts to ensure fair treatment for criminal
defendants.
First and foremost, under our
justice system the defendant is presumed to be innocent, and
the burden to prove guilt, beyond a reasonable doubt, rests on
the prosecution. Additionally, a criminal defendant has other
fundamental rights provided for in the U.S.
Constitution.
Some
of these rights are described below.
Whether or not you're a
citizen, you have these constitutional rights.
You must assert your rights,
otherwise they will be
considered to be waived.
CONSTITUTIONAL RIGHTS CANNOT BE
SUSPENDED– EVEN DURING A STATE OF EMERGENCY OR WARTIME-- AND
THEY HAVE NOT BEEN SUSPENDED BY THE "USA PATRIOT ACT" OR
OTHER RECENT LEGISLATION!
I.
WHAT RIGHTS DO I HAVE?
A)
The
Right to Advocate for Change
B)
The Right to be Free from
"Unreasonable Searches &
Seizures"
C)
The Right to Remain Silent
D)
The Defendant's Right to
Confront Witnesses
a)
Special Rules for Child Sexual Assault Cases
E)
The Defendant's Right to a
Public Trial
F)
The Defendant's Right to a
Jury Trial
G)
The Defendant's Right to
Be Represented by an Attorney
a)
The Defendant's Right to
Adequate Representation
b)
Getting a Criminal Defense
Counsel FAQ
H)
The Defendant's Right to a
Speedy Trial
I)
The Defendant's Right Not
to Be Placed in Double Jeopardy
II.
WHAT
IF THE POLICE OR THE FBI CONTACT ME?
A)
What if agents come to
question me?
B)
Do I need a lawyer?
C)
If I refuse to answer
questions or if I say I want a lawyer,
won't it seem like I
have something to hide?
D)
Can agents search my home,
apartment or office?
a)
What if I am not at home?
E)
What if they do have a search
warrant?
F)
What if the police stop me on
the street?
a)
Do I have to give my name?
G)
What if the police or FBI
threaten me with a grand jury
subpoena
if I refuse to talk?
H)
What if I am treated badly by
the police or FBI?
III.
WHAT
IF I AM NOT A U.S. CITIZEN AND IMMIGRATION AGENT
CONTACTS ME?
IV.
WHAT
ARE MY RIGHTS AT AIRPORTS?
V.
WHAT IF I AM UNDER 18?
A)
Do I have to answer
questions?
B)
What if I am detained?
C)
Do I have rights at school?
VI.
"KNOW
YOUR RIGHTS PAMPHLETS" IN DIFFERENT LANGUAGES
I. WHAT RIGHTS DO I HAVE?
The Right to Advocate
for Change
The
First Amendment to
the U.S. Constitution protects the rights of individuals and groups who advocate changes in laws, government
practices, and even the form of government. However, the
Immigration Service
can target non-citizens for deportation because of their
First Amendment activities, as long as it could deport them
for other reasons.
The Right to be Free
from "Unreasonable Searches and Seizures"
The
Fourth Amendment is supposed to protect your privacy.
Without a warrant, police or government agents may not
search your home or office without your consent, and you
have the right to refuse to let them in. They can enter and
search without a warrant in an emergency. New laws have
expanded the government's authority to conduct surveillance.
It is possible that your e-mail, cell and other telephone
calls, and conversations in your home, office, car or
meeting place are being monitored without your knowledge.
The Right to Remain
Silent
The
Fifth Amendment to the
U.S. Constitution gives every person the right not to answer
questions asked by a police officer or government agent. The
Fifth Amendment to the U.S. Constitution provides that a
defendant cannot "be compelled in any criminal case to be a
witness agaImmigration Servicest himself." In short, the defendant cannot be
forced to speak. If the defendant chooses to remain silent,
the prosecutor cannot call the defendant as a witness, nor
can a judge or defense attorney force the defendant to
testify. (A defendant may, however, be called as a witness
in a civil case.)
The "confrontation clause" of the
Sixth Amendment gives defendants the right to "be confronted
by the witnesses agaImmigration Servicest" them. This gives defendants the
right to cross-examine witnesses -- that is, the right to
require the witnesses to come to court, "look the defendant in
the eye," and subject themselves to questioning by the
defense. The Sixth Amendment prevents secret trials and,
except for limited exceptions, forbids prosecutors from
proving a defendant's guilt with written statements from
absent witnesses.
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Special Confrontation Rules for Child Sexual
Assault Cases |
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In recent years, legislators have
been concerned about defendants who escape
punishment for sexually molesting young children
because the children were afraid to testify in the
defendant's presence. To address this problem, many
states have enacted special rules that authorize
judges -- in certain situations -- to allow children
to testify via closed circuit television. The
defendant can see the child on a television monitor,
but the child cannot see the defendant. The defense
attorney can be personally present where the child
is testifying, and can cross-examine the child. |
The
Sixth Amendment guarantees
public trials in criminal cases. This is an important right,
because the presence in courtrooms of a defendant's family and
friends, ordinary citizens, and the press can help ensure that
the government observes important rights associated with
trials.
In a few situations -- normally
involving children -- the court will close the court to the
public. For example, judges can bar the public from attending
cases when defendants are charged with sexual assaults agaImmigration
Servicest
children. Also, the judge may exclude witnesses from the
courtroom when it appears that they will coach each other.
The
Sixth Amendment gives a person
accused of a crime -- other than a petty offense carrying a
sentence of six months or less of jail time -- the right to
be tried by a jury. This right has traditionally been
interpreted to mean a 12-person jury. However, a jury can
constitutionally consist of as few as six persons, but
defendants tried by six-person juries can be convicted only if
the jury is unanimous in favor of guilt.
In most cases, a unanimous verdict
is required to convict. In most states, a lack of unanimity is
called a "hung jury," and the defendant will go free unless
the prosecutor decides to retry the case. In Oregon and
Louisiana, however, juries may convict or acquit on a vote of
ten to two. And the U.S. Supreme Court has upheld a state law
providing for less-than-unanimous verdicts by 12-person juries
in non-death penalty cases.
Potential jurors must be selected
randomly from the community, and the actual jury must be
selected by a process that allows the judge and lawyers to
screen out biased jurors. In addition, a lawyer may eliminate
several potential jurors simply because he feels that these
people would not be sympathetic to his side -- but these
decisions (called "peremptory challenges") may not be based on
the juror's personal characteristics such as race, sex,
religion, or national origin.
The
Sixth Amendment provides that
"in all criminal prosecutions, the accused shall enjoy the
right ... to have the assistance of counsel for his defense."
If a defendant cannot afford an attorney (is "indigent"), a
judge must appoint an attorney at government expense, but only
if the defendants might be actually imprisoned for a period of
more than six months for the crime. As a practical matter,
judges routinely appoint attorneys for indigents in nearly all
cases in which a jail sentence is a possibility. Otherwise,
the judge would be locked into giving an unrepresented
defendant a nonjail sentence or a shorter sentence than he or
she might think appropriate after hearing the evidence.
For more information on retaining
a Criminal Defense lawyer, see the
Getting a Criminal Defense
Counsel FAQ.
The U.S. Supreme Court has ruled
that both indigent defendants who are represented by appointed
counsel and defendants who hire their own attorneys are
entitled to adequate representation. However, adequate
representation is by no means perfect representation. Here are
examples of claims that defendants have made to get their
guilty verdicts thrown out and that appellate courts have
rejected:
-
attorney's failing to call
favorable witnesses at trial
-
attorney's failing to object to
a judge's mistaken Immigration Servicestructions to jurors concerning the
burden of proof
-
attorney's repeatedly advising a
defendant who claimed innocence to plead guilty
-
attorney's using cocaine during
the time the representation took place, and
-
attorney's representing the
defendant while being suspended from the practice of law for
failure to pay state bar dues.
On the other hand, circumstances
can be sufficiently shocking to justify throwing out a guilty
verdict based on an attorney's incompetence. Judges have ruled
that the following claims justify a reversal of a guilty
verdict:
-
attorney's putting a law student
intern in charge of the defense and leaving the courtroom
while the case was going on
-
during closing arguments,
attorney's acknowledging that the defendant was guilty of a
lesser crime without first securing the defendant's approval
of this tactic, and
-
during voir dire
(questioning of the jury), attorney's failing to challenge
two potential jurors who said they would be bothered by the
defendant's failure to testify.
The
Sixth Amendment gives
defendants a right to a "speedy trial." However, it does not
specify exact time limits. Thus, judges often have to decide
on a case-by-case basis whether a defendant's trial has been
so delayed that the case should be thrown out. In making this
decision, judges look at the length of the delay, the reason
for the delay, and whether the delay has prejudiced (harmed)
the defendant's position.
Every jurisdiction has enacted
statutes that set time limits for moving cases from the filing
of the initial charge to trial. While these statutes are very
strict in their wording, most defendants cannot get their
convictions reversed on the ground that these statutes were
violated.
Among the clauses of the
Fifth Amendment is this well-known provision: "nor shall any person
be subject for the same offense to be twice put in jeopardy of
life or limb." This provision, known as the double jeopardy
clause, protects defendants from harassment by preventing them
from being put on trial more than once for the same offense.
Double jeopardy problems are unusual, because prosecutors
usually want to wrap up all their charges at one time in the
same case.
One important exception to the
rule agaImmigration Servicest double jeopardy is that defendants can properly
be charged for the same conduct by different jurisdictions.
For example, a defendant may face charges in both federal and
state court for the same conduct if some aspects of that
conduct violated federal laws while other elements ran afoul
of the laws of the state.
Furthermore, the double jeopardy
clause forbids more than one criminal prosecution
growing out of the same conduct. A defendant can be brought
once to criminal court (by the government) and once to civil
court (by members of the public) for the same crime.
II. WHAT
IF THE POLICE OR THE FBI CONTACT ME?
What if agents come to
question me?
YOU DO NOT HAVE TO TALK
TO THE POLICE, FBI, IMMIGRATION, OR ANY OTHER LAW ENFORCEMENT AGENT
OR INVESTIGATOR.
You can't
lawfully be arrested for refusing to identify yourself on
the street, although this may make the police suspicious,
and police and other agents do not always follow the law. If
you are driving a vehicle, you must show your license and
registration. Otherwise, you do not have to talk to anyone:
on the street, at your home or office, if you've been
arrested, or even if you're in jail.
Only a judge has the legal authority to order
you to answer questions.
Do I need a lawyer?
IF YOU ARE CONTACTED,
TELL THE AGENT YOU WANT TO TALK TO A LAWYER.
Once you say this, they should stop trying to question you
and should make any further contact through your lawyer. You
have the right to say that you want to talk to a lawyer even
if you do not already have one. Remember to get the name,
agency, and telephone number of any investigator who calls
or visits you, and call the NLG, or a criminal or
immigration lawyer, before deciding whether to answer
questions. If you do agree to be interviewed, you have the
right to have a lawyer present. The government does not have
to provide you with a free lawyer unless you are charged
with a crime, but the NLG or another organization may be
able to find you a lawyer for free or a reduced rate.
If I refuse to answer
questions or if I say I want a lawyer, won't it seem like I
have something to hide?
TALKING TO THE FBI OR
OTHER AGENTS CAN BE DANGEROUS.
You
can never tell how a seemingly harmless bit of information
might be used to hurt you or someone else. That is why the
right not to talk is a fundamental right under our
Constitution. The FBI is not just trying to find terrorists,
but is gathering information on immigrants and activists who
have done nothing wrong. And keep in mind that even though
they are allowed to and do lie to you, lying to a
federal agent is a crime. The safest things to say are
"I
am going to remain silent",
"I want to speak to my
lawyer", and
"I do not
consent to a search."
Can agents search my home,
apartment or office?
YOU DO NOT HAVE TO LET
POLICE OR OTHER LAW ENFORCEMENT AGENTS INTO YOUR HOME OR
OFFICE UNLESS THEY HAVE A SEARCH WARRANT.
However, your roommate or guest can legally
consent to a search of your house if the police believe that
person has the authority to give consent and your employer
can consent to a search of your office. Do not try to
physically interfere with the police or agents, even if the
search is illegal, or you will likely be arrested. Say "I do
not consent to a search." Do not answer any questions. Call
the NLG or a criminal lawyer.
If agents come to arrest me in
my home, can they search my home?
They can search the area near
where you are arrested but not your entire house, unless
they have a search warrant.
What if I am not at home?
Under the new "USA Patriot Act",
under certain circumstances agents may surreptitiously
search and not notify you until afterward, perhaps a long
time afterward. It is uncertain whether this provision will
stand up in light of the Fourth Amendment. If you suspect
your home or office has been searched or that you are being
surveilled, contact the NLG or a criminal lawyer.
What if they do have a search
warrant?
DEMAND TO SEE THE
WARRANT.
The warrant must tell in
detail the places to be searched and the people or things to
be seized. If the police have a warrant, you cannot stop
them from entering and searching, but you should still
tell them that you do not consent to a search. This will
limit them to search only where the warrant authorizes. Ask
if you are allowed to watch the search and if so, watch and
take notes including names, badge numbers, and what agency
the officers are from. Have friends act as witnesses. Give
this information to your lawyer. If the officers ask you to
give them documents, your computer, or anything else, look
to see if the item is listed in the warrant. If it is not,
do not consent to them taking it without talking to a
lawyer. Even if they have a search warrant, you still do
not have to answer any questions. Call the NLG for help
getting a criminal lawyer.
What if the police stop me on
the street?
ASK IF YOU ARE FREE TO
GO. If they say yes, walk away. If
you are not free to go, you are being detained, but this
does not necessarily mean you will be arrested. They are
entitled to frisk you. A frisk is a pat down on the outside
of your clothing. Do not consent to any further search. But
if they continue, or in some other way violate your rights,
stay calm and don't physically resist police or agents. You
will only be hurt and arrested. Stick to "I don't consent, I
want to speak to my lawyer"; get the officer's name, badge
number, and agency; and call a lawyer or the NLG at your
first opportunity. You do not have to answer questions or
give a statement if you are detained or even if you are
arrested.
Do I have to give my name?
Legally, you do not have to give
your name unless they suspect you of a crime, but refusing
to give your name is likely to arouse suspicion. Be aware
that police/ agents may be carrying a list of deportable
aliens. Giving a false name could be a crime. If you are
driving a car, you must show them your license, registration
and proof of Immigration Servicesurance, but you do not have to consent to a
search, although the police may have legal grounds to search
your car anyway.
What if the police or FBI
threaten me with a grand jury subpoena if I refuse to talk?
A grand jury subpoena is a
written order for you to go to court and testify about
information you may have. It is common for the FBI to
threaten you with a subpoena to get you to talk to them.
Don't be intimidated. This is frequently an empty threat,
and if they are going to subpoena you, they will do so
anyway. Receiving a subpoena to testify before a grand jury
doesn't mean that you are suspected of a crime. And you may
have legal grounds to stop the subpoena or to refuse to
answer questions before the grand jury. If you do receive a
subpoena, call the NLG or a criminal lawyer right away.
What if I am treated badly by
the police or FBI?
Try to remember the officer's
badge number and/or name. You have the right to ask the
officer to identify himself. Write down everything as soon
as you can and try to find witnesses. If you are injured,
see a doctor and take pictures of the injuries as soon as
possible. Call the NLG or one of the other organizations
listed on the front as soon as possible.
III. WHAT IF
I AM NOT A U.S. CITIZEN AND IMMIGRATION AGENT CONTACTS
ME?
Assert your rights.
If you do not demand your rights
or if you sign papers waiving your rights, the Immigration
Services may
deport you before you see a lawyer or an immigration judge.
Talk to a lawyer.
Always carry with you the name and telephone number of an
immigration lawyer and who will take your calls. You must
carry your immigration papers such as "green card", I-94,
work authorization with you as well. The immigration laws
are hard to understand and there have been many changes
since September 11. More changes are likely. Immigration
Services will not
explain your options to you. As soon as you encounter an
Immigration Services
agent, call your attorney. If you can’t do it right away,
keep trying.
Always talk to an
immigration lawyer before leaving the U.S.
Even some legal permanent residents and applicants for LPR
can be barred from returning.
Based on today's laws,
non-citizens usually have the rights below, no matter what
your immigration status. However, this information may
change, which is why it's important to talk to an
immigration lawyer. Also, foreign nationals trying to enter
the U.S. at the border or airport do not have all of these
same rights.
You usually have the
right to talk to a lawyer before answering any questions or
signing any papers.
You have the
right to call an attorney or your family if you are
detained, and you have the right to be visited by an
attorney in detention. You have the right to have your
attorney with you at any hearing before an immigration
judge. You do not have the right to a government-appointed
attorney, so you must hire one or find someone who will
represent you for free. Call the numbers listed on the front
for help finding an attorney.
You do not have to
answer questions about your immigration status or any other
questions. You are better off
talking to a lawyer first.
If you are arrested or
detained, the Immigration Services must decide in 48 hours whether to put you
into immigration proceedings and whether to keep you in
custody or to release you on bond. However, under new laws,
the Immigration Services has an "additional reasonable period of time" past
48 hours in the event of "an emergency or other
extraordinary circumstance" to decide whether to keep you in
custody. Make sure your attorney talks to national
immigration rights organizations if the Immigration Services is keeping you
in detention on the basis of these new laws (see the contact
numbers on the front.)
In most cases, you have
the right to ask for release from detention by paying a
bond, or to ask for a bond hearing before an immigration
judge. You have these rights even
if you have not been charged by the Immigration Services. The law does not
say when an immigration judge must hear your case. The judge
may order you to stay in detention if he or she finds that
you are a danger to society or might try to get away. In
some cases, the law says you can't be released if you are
charged with terrorism or have certain criminal convictions.
In most cases, you have
the right to a hearing before an immigration judge before
you can be deported.
But if you
waive (give up) your rights or take "voluntary departure"
(agree to leave), you could be deported without a hearing.
If this happens, you may never be able to enter the U.S.
legally again or get legal immigration status. If you have
criminal convictions, were arrested at the border, or have
been ordered deported in the past, you must talk to an
attorney about whether you have this right and what other
legal alternatives you might have.
If you are a foreign
national arrested in the U.S., you have the right to call
your consulate or to have
the police inform the consulate of your arrest. The police
must allow your consul to visit or speak with you. Your
consul might assist you in finding a lawyer or offer other
help, such as contacting your family.
You also have the right to refuse help from
your consulate.
IV. WHAT ARE
MY RIGHTS AT AIRPORTS?
You gave airport personnel
permission to scan you and your bags by buying a ticket and
going to the airport. They can do additional random
searches of persons and property regardless of whether the
initial scan turns up anything suspicious. If the scan does disclose something that might be a weapon, the law
is unclear whether you have the right to leave the airport
rather than being searched. The airplane pilot can refuse to
fly a passenger if he or she believes the passenger is a
threat to the safety of the flight. And if you are entering
the country, the U.S. Customs Service has the right to stop
and search every person and item.
But you should not be barred from flying or subjected to
special searches or harassment on the basis of your race,
sex, religion, national origin, or political beliefs. If you
believe this is the case, call one of the organizations on
the front.
V. WHAT IF I AM UNDER 18?
Do I have to answer
questions?
No. Minors too have the right to
remain silent. You do not have to talk to the police,
probation officers, or school officials.
What if I am detained?
If you are detained at a
community detention facility or Juvenile Hall, you normally
must be released to a parent or guardian. If charges are
filed agaImmigration Servicest you, you have the right to have a lawyer
appointed to represent you at no cost.
Do I have rights at school?
Public school students have the
First Amendment right to politically organize at school by
passing out leaflets, holding meetings, publishing
independent newspapers, etc., just so long as those
activities do not disrupt classes. Students can be suspended
or expelled from school only if they violate the law or
disrupt school activities. You have the right to a hearing,
with your parents and an attorney present, before being
suspended or expelled.
Students can have their
backpacks and lockers searched by school officials without a
warrant, if they suspect that you are involved in criminal
activity or carrying drugs or weapons. Do not consent to the
police or school officials searching your property, but do
not physically resist or you may face criminal charges.
Students can be stopped and questioned by school officials
at school, for example if you are not in class. However,
they should not stop and question you for engaging in
political activity or because of your ethnicity or religion.
If you think your rights have been violated, call one of the
organizations on the front.
"KNOW
YOUR RIGHTS PAMPHLETS" IN DIFFERENT LANGUAGES
These pamphlets are
from
American Civil Liberties
Union (ACLU)
Note: The pamphlets are
in pdf format and you must have Acrobat Reader to view a pdf file.
Click
here to download Acrobat Reader for free.
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