You can’t do that! I have rights, you know… Wait, what are my constitutional rights?

A friend told me this week that he got a phone call from the elementary school about his 12-year-old son – apparently, the boy kept telling his teachers that they were violating his rights and he was going to sue them (whether they were actually violating his rights is debatable, but he is definitely not going to sue his school).

How many people really know what their constitutional rights are, or why we have them? Why don’t we teach constitutional law to every child in school? (When people don’t know their rights, they are less likely to use them. Could it be that sinister?)

Sure, most people who own a television can tell you the rights that are contained in the Miranda warning – you have the right to remain silent, you have the right to an attorney, for example – but do they know what that means or when or how to assert those rights?

Why Do We Have a Bill of Rights?

The Bill of Rights consists of the first ten amendments to the US Constitution – they were not in the original Constitution as drafted. Why?

In the wrangling over the language of the new Republic’s Constitution, they left out provisions that would protect the people from an overreaching, tyrannical government – a declaration of rights was conspicuously missing from the document. Many of the Founders believed that any government would become tyrannical if not constrained – with good reason.

Throughout history, governments have oppressed, imprisoned, and killed their citizens without regard for individual liberties.

Even during the turbulent period when the European powers were struggling to do away with monarchies and give the power to the people, the new revolutionary governments often turned out to be as tyrannical as the old monarchies if not worse.

Recognizing this, many of the newly formed states held out for a Bill of Rights that would place limits on the government’s ability to search, imprison, torture, kill, and silence the nation’s citizens.

In the compromise that was eventually reached, the hold-outs agreed to sign the new Constitution only after securing an agreement to introduce a Bill of Rights via constitutional amendments.

Today, those rights are being used every day by criminal defense attorneys on the front line for their intended purpose – to constrain a government that is constantly pushing the boundaries and overreaching in the name of national security, law enforcement, and political battles.

What are those rights?

What are My Constitutional Rights?

I’m going to briefly discuss only four of the ten amendments found in the Bill of Rights, plus the Fourteenth Amendment because all the other amendments are useless if they cannot be applied to the states…

I chose these four amendments because they are most commonly used in criminal defense cases. For example, you have the right to bear arms under the Second Amendment, and, yes, that is very important. It’s not a routine defense in criminal prosecutions, though.

Of course, every one of the rights enumerated in the Constitution has been slowly but steadily eroded since the Eighteenth Century. It’s not enough to just “know your rights.” You also need to know when your rights, as enumerated in the Bill of Rights, are not your rights according to the Courts interpreting the provisions of the Bill of Rights.

What are My First Amendment Rights?

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.

You have the right to practice any religion that you choose, so long as it does not infringe on the rights of other people. The government is not allowed to declare a “national religion” and is not permitted to “endorse” or promote one religion over another.

When national and local governments are dominated by one particular religion, enforcing the First Amendment is a constant struggle – there are people in federal, state, and local governments who want to have a national religion, who believe that their faith demands it, and who are constantly, incrementally, trying to move the needle in that direction…

You also have freedom of speech – as long as it does not amount to “fighting words,” you have the right to speak your mind and to criticize the government – something that would have gotten you killed (or worse) in most of the world’s nations in the centuries preceding the American Revolution.

The right to “petition the government for a redress of grievances” is a necessary part of the freedom of speech that is often ignored by police departments who refuse to accept complaints from the public, who only pay lip service to those complaints, or, even worse, retaliate when citizens make complaints.

The right to peaceably assemble is taken for granted by many people – pre-Revolution governments often declared it illegal for members of a political party or religious affiliation to meet, in an attempt to suppress those religions or political views.

What are My Fourth Amendment Rights?

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.

If the government wants to arrest a person and restrict their freedom, they must first show probable cause that a crime has been committed to a judge and get an arrest warrant.

Unless you commit a crime in front of a police officer. Or there is evidence that a crime was “freshly committed.” Or it is a minor offense that is written on a blue ticket, in which case you can be jailed without a finding of probable cause by a judge.

If the government wants to invade your personal space – your car, your home, your electronic devices (the Founders didn’t see that one coming), or your pockets – they must first show evidence of probable cause to a judge and get a search warrant.

Unless you are in a vehicle, there is an emergency, the police are in hot pursuit, incriminating evidence is in plain sight, incriminating evidence is in “plain feel,” police think that “crime may be afoot” (reasonable suspicion replaces probable cause), the search is “incident to arrest,” you are a student on campus, you are at the border or in an airport, or police say they “smell marijuana.”

The exceptions have truly swallowed the rule when it comes to the Fourth Amendment, and any police officer who understands Fourth Amendment law can probably find a way to get around seeking a warrant.

What are My 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.

You have the right to have a grand jury review the allegations against you and decide whether there is probable cause before indicting you. Except in SC, where you have the right to have a grand jury, in a secret proceeding that you cannot attend or obtain a record of, listen to a 60 second summary of what you are charged with before indicting you.

You have the right to not be charged with the same crime twice, unless it is the federal government punishing you a second time for a crime for which your state has already convicted you.

You can’t be compelled to provide incriminating information against yourself, unless you are charged with DUI. Then all bets are off…

You are entitled to Due Process of law – an amorphous concept that means the criminal process must be fair and you must be given the protections provided by the law. It prevents the government from arbitrarily killing you, imprisoning you, or otherwise punishing you.

The Due Process Clause applies to the substance of laws (substantive due process) as well as the procedure by which laws are enforced (procedural due process).

You have the right to keep your property. Unless the government wants it, and then, of course, they can take it. But then, you have the right to get paid the fair value of your property that the government is taking from you.

What are My Sixth Amendment 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.

You have the right to a speedy trial. What a “speedy trial” means, however, is subject to interpretation. The courts have provided a number of factors that are to be considered when deciding whether the right to a speedy trial was violated, including not just the length of the delay, but also the complexity of a case, the reason for the delay, whether the defendant was prejudiced by the delay, and whether the defendant ever asserted their right to a speedy trial.

You have the right to a jury trial – your fellow citizens must decide your fate, and not a judge who is employed by the same government that is prosecuting you. Unless you are charged with a minor offense, DUI (of course), or the government classifies your “crime” as “administrative” (i.e. implied consent proceedings and sexually violent predator proceedings).

You have the right to be informed of the charges against you – that’s pretty well universally observed, at least.

You have the right to be confronted with the witnesses against you – there can be no “secret testimony,” and you have the right to question any witnesses that are providing against you.

You have the right to compulsory process – through the subpoena power – to obtain evidence in your favor. Unless you are charged with a misdemeanor offense in SC, in which case the magistrates will not sign your subpoena for documentary evidence.

You have the right to an attorney. 1) You have the right to choose your attorney if you get your own, 2) the government must provide a lawyer for you if you cannot afford one, and 3) you have the right to effective assistance of an attorney.

Unless you are charged with a misdemeanor offense in SC. Or you don’t clearly and unequivocally ask for a lawyer. Or you are not going to be sent to jail. Or you can’t prove that your attorney’s ineffective assistance prejudiced your case.

What are My Fourteenth Amendment Rights?

The Fourteenth Amendment contains a number of rights related to citizenship and equal protection, but it is not a part of the Bill of Rights.

It is important to the Bill of Rights, however, because it states, “nor shall any state deprive any person of life, liberty, or property without due process of law,” a second Due Process Clause that makes the rights contained in the Bill of Rights enforceable against the individual states and not just against the federal government…

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts. If you have been charged with a crime or are under investigation, call now at (843) 808-2100 or send an email to schedule a free consultation.