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Some of most important constitutional rights you should be aware of if you are facing arrest or trial are:

  • your 4th Amendment right to be free from unreasonable searches and seizures;
  • your 5th Amendment right to be free from testifying against yourself and your Miranda rights;
  • your 6th Amendment rights to an attorney, fair trial, and due process;
  • your 8th Amendment right to be free from cruel and unusual punishment.

Attorney Robert J. McWhirter has been practicing law for over 30 years, and much of his legal experience pertains to constitutional law. He has published books on the topic, taught courses on the topic, and represented clients regarding the topic. As a result, you can trust that Attorney McWhirter is a seasoned professional with a deep understanding of your constitutional rights as an accused.

If you believe your constitutional rights have been violated, contact the Law Offices of Robert J. McWhirter online or at (480) 690-9097 today.


4th Amendment: Unreasonable Searches and Seizures

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...”

The text of the 4th Amendment and as it has been applied historically to past cases, have established a number of protections for citizens against unreasonable searches and seizures. Firstly, the law rules that warrantless searches and seizures inside a home are presumptively unreasonable, unless:

  • an officer is given consent to search (Davis v. United States, 328 U.S. 582 (1946));
  • the search is incident to a lawful arrest (United States v. Robinson, 414 U.S. 218 (1973));
  • there is probable cause to search and exigent circumstances (Payton v. New York, 445 U.S. 573 (1980));
  • the items are in plain view (Maryland v. Macon, 472 U.S. 463 (1985)).

Note that school officials do not need to obtain a warrant before searching a student who is under their authority; they merely need to have reasonable cause to search the student (New Jersey v. TLO, 469 U.S. 325 (1985)).

4th Amendment rights also apply to searches and seizures pertaining to vehicles. When there is probable cause to believe that a vehicle contains evidence of criminal activity, an officer may lawfully search that vehicle in which the evidence might be found. Additionally, an officer may conduct a pat-down of the driver and passengers during a lawful traffic stop and need not believe that any occupant of the vehicle is involved in a criminal activity (Arizona v. Johnson, 555 U.S. 323 (2009)).

Regarding narcotics, a state is legally allowed to set up highway checkpoints for brief stops (Illinois v. Lidster, 540 U.S. 419 (2004)), though a state may not use such a checkpoint program primarily to discover illegal narcotics.

5th Amendment: Self-Incrimination and Miranda 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…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...”

The 5th Amendment provides defendants with the right against self-incrimination, as well as the right to remain silent while in police custody, and writs of habeas corpus, among other legal safeguards. More specifically, “pleading the Fifth” endows the defendant the right not to testify or to answer police questions while in custody or in court, so they cannot be forced to take the witness stand if they do not want to. Note that once the defendant takes the witness stand, their 5th Amendment right is considered waived. It is also worth mentioning that the 5th Amendment right against self-incrimination does not apply to the collection of DNA or fingerprints in connection with a criminal case, as such evidence is considered non-testimonial.

A person’s Miranda rights are also rooted in the 5th Amendment’s protection against self-incrimination. Recall that the Miranda rights include:

  • the right to remain silent;
  • the fact that anything a person says can and will be used against them in court;
  • the right to an attorney (more below).

When police officers question a suspect in custody without informing them of their Miranda rights, any statement or confession made is presumed to be involuntary and thus unusable in any criminal case. 

6th Amendment: Right to an Attorney, Due Process, and Fair Trial

“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…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 defence.”

Both the 5th Amendment (through Miranda warnings) and the 6th Amendment provide a defendant the right to an attorney, though the 6th Amendment does not commence until after the defendant has been charged with a crime.

As stated above, every defendant has a right to a speedy trial, which is based on the length of a delay for trial, the reasons for the delay, whether the defendant has asserted the right, and any prejudice to the defendant because of the delay. According to the Supreme Court, if a defendant’s right to a speedy trial has been violated (which rarely occurs), they may have an outright dismissal of the charges. 

Most trials allow the defendant the right to an impartial, unbiased jury. If the crime carries a sentence of 6 months or fewer, though, a defendant may be tried by only a judge, though it is common to have a jury regardless.

8th Amendment: Cruel and Unusual Punishment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The rights under the 8th Amendment address how individuals may (and may not) be treated in the criminal justice system. For instance, a defendant’s 8th Amendment rights protect them from incurring physical harm or injury that may occur during a detention, arrest, prison, or some other form of custody. This could also be in the form of not providing needed medical care to an individual in custody.

Further, the government is also prohibited from causing non-physical harm, such as through an excessive bail or fine. 

Individuals who believe their 8th Amendment rights have been violated may seek damages and other remedies by filing a civil rights case. Note that the court’s definition of cruel and unusual punishment may vary on a case-by-case basis, so it is important to have an experienced constitutional lawyer by your side.  

Questions? Contact the Law Offices of Robert J. McWhirter.

If you believe your constitutional rights have been infringed upon as the criminally accused, you have the right to take legal action. Attorney Robert J. McWhirter is an experienced professional with an expert knowledge of constitutional law. Whether you believe your 4th Amendment rights, 5th Amendment rights, 6th Amendment rights, or 8th Amendment rights have been violated, our law firm can help you take appropriate legal action. 

Schedule an initial consultation online or at (480) 690-9097 to discuss your case in more detail with the Law Offices of Robert J. McWhirter.

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