Burgess & Porter Law
Rights of the Accused
Every individual, whether a citizen or not, has automatic constitutional rights that protect them in the United States.  These constitutional rights exist before and after someone is accused of committing a  crime.

1. Right to Remain Silent

Under the 5th Amendment, every person has the right to refuse to answer questions or make statements that might tend to incriminate them. This applies at any stage of a criminal investigation or prosecution. As we often see on television individuals regularly invoke their 5th Amendment Right to remain silent… “On the advice of counsel, I respectfully assert my right to remain silent under the 5th Amendment to the United States Constitution.”

The first and most famous is the right to remain silent. That means that everyone has the right to speak with or not speak with whomever they choose. Every individual has the right not to speak with police if that is what they choose.

This is an important right that should be exercised with the advice of legal counsel.

2. Miranda Warnings

The historic U.S. Supreme Court case of Miranda v. Arizona requires that law enforcement officers inform arrested suspects of certain rights, including the option of saying nothing. The Miranda law comes from the Fifth Amendment of the U.S. Constitution. It includes the privilege against self-incrimination, and requires the practice of officers telling arrestees that:
• what they say can be used against them in court
• they have the right to consult with a lawyer
• a lawyer can be present during questioning
• a lawyer will represent them free of cost if they can’t afford but want one, and
• if they decide to answer police questions, they can stop the interview at any time.
Right to Miranda warnings if someone is being held in custody and questioned by police.

The Miranda rights apply only when the police have a suspect in custody.
Police do not have to give the warnings in these situations:
• When the police have not focused on a suspect and are questioning witnesses at a crime scene.
• When a person volunteers information before the police ask a question.
• When the police stop and briefly question a person on the street.
• During a traffic stop.
Most recently, the Supreme Court of the United States ruled that a person must invoke (directly state) their right to remain silent. See Salinas v. Texas. That means that an arrested person must tell the officers that they do not wish to speak to the officers.
To be safe, anyone arrested should make clear that they are invoking their Fifth Amendment right to silence and have nothing further to say. That way their subsequent failure to answer any questions cannot be mentioned at trial.

3. Witness’ Rights to Silence

Even someone not accused of a crime is not required to speak with law enforcement agents unless there is a court order. That includes the right not to speak with witness/victim advocates, prosecutors, FBI agents, or the dog catcher.

If law enforcement attempts to speak to someone who does not wish to be questioned, the best way to stop the questioning is to state aloud their desire not to speak with that person and to request a lawyer before questioning. Under, the 6th Amendment’s right to counsel, once an attorney is requested, all questioning must stop.

4. Right to Due Process

Due process refers to the procedure for insuring that the government provides justice to its citizens in all legal proceedings. In a word, due process requires fairness. Due process requirements vary depending on the situation. “Fair” procedures generally include the right to notice, the right to a hearing, the right to confront accusers, and the right to respond to allegations.

With regard to the criminal justice system, due process means that a defendant accused of a crime must be told of the charges against him or her, have the opportunity to present a defense against such charges at a trial, and have the services of counsel and the right to an appeal. These due process rights derive from the 4th, 5th, 6th, and 8th Amendments to the Constitution.