Criminal Rights

Every suspect in a criminal case has certain Constitutional rights.

The government cannot infringe on these rights. Federal law requires the government to uphold a suspect's Constitutional rights throughout a criminal case, including misdemeanor and felony cases.

This section provides information on a suspect's rights within the criminal justice process, including:

  • Search and seizure rights
  • Miranda rights (such as the right to remain silent)
  • Key rights of criminal defendants

To begin, select a link from the list below.

Fourth Amendment Rights

The Fourth Amendment to the U.S. Constitution protects your right to privacy. Specifically, it applies to searches and seizures conducted by government agents.

Searches and Seizures

To conduct a lawful search and seizure, a law enforcement official typically requires a valid search warrant, a valid arrest warrant, or probable cause. If an officer finds evidence during the search, the government agent may then seize it. The prosecution may use the seized evidence in the prosecution's case-in-chief against the defendant. If the warrant is later invalidated, the court will most likely exclude the seized evidence.

Search Warrant Exceptions

There are exceptions to the general rule that a law enforcement officer needs a search warrant to conduct a lawful search and seizure. General categories of exceptions are as follows:

  • Exigent circumstances
  • Search incident to arrest
  • Consent
  • Automobile (in many situations but not all)
  • Plain view
  • Evidence obtained during an administrative inspection or investigation
  • Stop and frisk

Whether these exceptions apply to a specific search and seizure depends on the facts of each particular case. A defendant facing criminal charges has options. A criminal defense attorney can help determine whether the government violated your rights during a search and seizure.


To raise a challenge under the Fourth Amendment, a criminal suspect must prove they had a reasonable expectation of privacy. To challenge a search, a suspect must have personal standing. For example, if the government searches your home, car, or person, you would most likely have standing.

If the government searched your neighbor's house, you most likely would not have standing. Also, the Fourth Amendment protection against unlawful searches and seizures applies only to government actors, such as law enforcement agencies.

Fifth Amendment Miranda Rights

The Fifth Amendment of the Constitution protects people from being a witness against themselves. If you have ever watched "Law and Order," you have probably seen a police officer tell the suspect of their Miranda rights.

Miranda rights inform a criminal suspect that they have the following rights:

  • To remain silent
  • Anything they say can and will be used against them in a court of law
  • To an attorney (either appointed or one they choose)

The arresting officer must read these rights to the suspect after an arrest, but before questioning begins. The officer administering one's Miranda rights does not need to recite the words verbatim. Instead, the officer only needs to reasonably convey the suspect's rights.

A criminal suspect must invoke their Miranda rights. Simply staying silent will not protect a suspect from interrogation. Furthermore, a suspect must invoke their right to an attorney to prevent police from questioning the suspect.

Sixth Amendment Trial Rights

At a criminal trial, a defendant has several important rights. The Sixth Amendment to the U.S. Constitution guarantees these rights. The Fourteenth Amendment to the U.S. Constitution makes these rights applicable to state courts. These rights include, but are not limited to:

  • The presumption of innocence until proven guilty
  • The right to a jury trial
  • The right to a speedy trial
  • The right to confront witnesses called to testify against them
  • The right to a public trial
  • The right to know the nature and cause of the accusations against them

Presumption of Innocence

A criminal defendant is presumed innocent throughout the criminal justice process. This presumption applies from pretrial hearings and preliminary hearings to grand jury proceedings and trials. This means that the prosecution has the burden of proof to show the defendant is guilty beyond a reasonable doubt. The prosecution must show enough evidence to prove every element of a crime beyond a reasonable doubt to secure a guilty verdict.

Jury Trial

A defendant's right to a jury trial is perhaps the most important right they have. In fact, the U.S. Constitution guarantees these rights in two different provisions of the Sixth Amendment. The right is not absolute.

The U.S. Supreme Court has determined that the right to a jury trial applies only to “serious offenses" and not “petty offenses." The maximum punishment of the offense determines whether an offense is serious or petty. A “serious" offense is an offense that may result in more than six months of jail time.

For example, serious crimes, such as first-degree murder or arson, would most likely be serious offenses. But if the offense is a petty offense, the state decides to provide a jury trial.

For example, disorderly conduct or harassment would most likely be petty offenses. Other offenses, such as driving under the influence (DUI) or similar criminal acts, could be classified as either serious or petty depending on the facts of the particular offense.

Speedy Trial

speedy trial is a “trial conducted according to prevailing rules and procedures that takes place without unreasonable or undue delay or within a statutory period." The U.S. Supreme Court determined the purpose of this right is as follows:

  • To prevent a person who has not yet been convicted from serving lengthy jail time
  • To lessen the time that the accused must endure the anxiety and publicity of the impending trial
  • To lessen the damage that delay might cause to the person's ability to present a defense

Despite this right's existence, there is no specific time within which a trial must begin. But some states have enacted laws that establish a time limit within which the trial must happen. For specific information about your state's laws, or if your trial court has set your trial date, consider contacting a criminal defense attorney in your state.

Confrontation Clause

The Confrontation Clause in the Sixth Amendment guarantees a criminal defendant “the right to be confronted with the witnesses against them." This allows the criminal defendant to cross-examine a witness, which may allow them to discredit the witness's testimony. It can also allow the defendant to show the witness committed perjury (lied under oath).

Defendants can use a subpoena to command a witness to appear at trial to confront a witness. A defendant can use this tactic to prevent a possible Confrontation Clause violation. In this situation, the defendant would likely be eliciting testimony from an "adverse" or "hostile" witness. Having a witness declared "hostile" or "adverse" allows the defendant's attorney to both call the witness to the stand and cross-examine them.

Double Jeopardy

Double jeopardy refers to a criminal defendant's right to not be prosecuted for an offense for which they have already been tried.

While there are many reasons for this protection, the double jeopardy clause prevents criminal defendants from further threat of prosecution after their case's conclusion. For example, if the defendant's trial results in an acquittal of their charge, they cannot be tried for that specific charge again in the future.

Plea Bargains

While criminal defendants have certain rights, options exist that are not guaranteed by the U.S. Constitution. While these are not rights, these options are worth considering for some defendants. For example, entering into a plea agreement may allow a defendant to avoid more jail time than they would have gotten had they gone to trial.

More than 90 percent of criminal convictions result from plea negotiations. Plea bargains occur when the defendant and prosecutor agree to a mutually satisfactory result of the case. In such instances, the defendant may agree to plead guilty to a lesser offense than the one charged. In exchange, the defendant often gets a lighter sentence than they would have if convicted of the more serious charges. Or, they may enter a guilty plea with regard to one count in a multi-count indictment. This option also may result in a lighter sentence than if the defendant had been found guilty of multiple counts. A defendant can decide to plead guilty at their arraignment — depending on the jurisdiction and the seriousness of the charges.

Whether a defendant chooses to enter into a plea agreement will depend on the specific facts of their case. Another factor to consider is their criminal history. Also, the defendant should consider the sentence they could receive at their sentencing hearing if convicted, as well as potential mitigating or aggravating factors that could affect the sentence.

How a Criminal Defense Attorney Can Help You

Because of the difficulty in representing yourself in a criminal case, consider consulting with and hiring a criminal defense attorney. A skilled criminal defense lawyer can offer more information and advice about the following:

  • Criminal law
  • Criminal procedure
  • Criminal offenses
  • The criminal justice system generally
  • Defending your criminal prosecution

A good criminal defense lawyer can guide you through each step of the criminal justice process. They can help to preserve your rights and provide you with the best possible defense.

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