Rights of the AccusedRights of the Accused

1. Arrest1. Arrest With a warrant: a) based on probable With a warrant: a) based on probable

cause b) warrant obtained from a judge cause b) warrant obtained from a judge presented with probable causepresented with probable cause

Without a warrant police must have Without a warrant police must have sufficient facts to convince a reasonable sufficient facts to convince a reasonable person that a crime has been committed.person that a crime has been committed.

44thth Amendment - Search and Amendment - Search and SeizureSeizure

““The right of the people to be secure in The right of the people to be secure in their persons, houses, papers and effects, their persons, houses, papers and effects, against unreasonable searches and against unreasonable searches and seizures shall not be violated. (1) and no seizures shall not be violated. (1) and no warrants shall issue, but upon warrants shall issue, but upon probable probable causecause, supported by oath or affirmation, , supported by oath or affirmation, and and particularly describing the place to be particularly describing the place to be searched, and the persons or things to be searched, and the persons or things to be seized."seized."

What is a reasonable search?What is a reasonable search? A. To be a reasonable search, it must be based A. To be a reasonable search, it must be based

on a search warrant issued when there is on a search warrant issued when there is probable causeprobable cause..

B. Requirements for a search warrant.B. Requirements for a search warrant.1. Each search warrant can allow the 1. Each search warrant can allow the

search search of only one person, place or vehicle.of only one person, place or vehicle.2. The warrant must identify the exact area 2. The warrant must identify the exact area and property to be searched.and property to be searched.3. The warrant must be issued by a judge.3. The warrant must be issued by a judge.

How do I know if there is probable How do I know if there is probable cause to search?cause to search?

evidence that leads a reasonable person to evidence that leads a reasonable person to believe that if he looks in a specific place he believe that if he looks in a specific place he would find specific criminal goods.would find specific criminal goods.

Probable cause to arrest - evidence that leads a Probable cause to arrest - evidence that leads a reasonable person to believe that a crime has reasonable person to believe that a crime has been committed and the person to be arrested is been committed and the person to be arrested is the one who committed the crime.the one who committed the crime.

Are there any exceptions to the Are there any exceptions to the probable cause/search warrant?probable cause/search warrant?

A. Search in a lawful arrest A. Search in a lawful arrest

B. Automobile search is reasonable if the police officer B. Automobile search is reasonable if the police officer has probable cause to believe there is contraband in has probable cause to believe there is contraband in the car.the car.

C. Stop and frisk - the police officer must reasonably C. Stop and frisk - the police officer must reasonably think a person is behaving suspiciously and may be think a person is behaving suspiciously and may be armed.armed.

D. “Hot pursuit”D. “Hot pursuit”

E. Border and airport searchersE. Border and airport searchers

ExampleExample A. The policed stop a young man on the A. The policed stop a young man on the

street because they believe he may be street because they believe he may be involved in a fight which has taken place, involved in a fight which has taken place, but only because he resembles a but only because he resembles a description. They pat him down and feel a description. They pat him down and feel a suspicious bag in his pocket. Do they have suspicious bag in his pocket. Do they have the right to remove the bag to see what is the right to remove the bag to see what is inside? inside?

AnswerAnswer The answer is The answer is nono for two reasons: a) he is for two reasons: a) he is

not being stopped because the police not being stopped because the police believe he may be carrying contraband believe he may be carrying contraband and b) the suspicious bulge does not and b) the suspicious bulge does not resemble a weapon which would pose a resemble a weapon which would pose a threat to the police.threat to the police.

ExampleExample B. Two young men are walking down the B. Two young men are walking down the

street and the police stop them because street and the police stop them because they resemble two fugitives. After getting they resemble two fugitives. After getting ID, they discover that the two are not the ID, they discover that the two are not the fugitives they are looking for but are fugitives they are looking for but are wanted on another warrant. Do they have wanted on another warrant. Do they have the right to search and seize? the right to search and seize?

AnswerAnswer Yes they do, because there is an open Yes they do, because there is an open

warrant for them.warrant for them.

What About Schools?What About Schools? School officials need School officials need “reasonable “reasonable

suspicion”suspicion” to search for violations. to search for violations. A lesser standard than “probable cause”A lesser standard than “probable cause” May search students without reasonable May search students without reasonable

suspicion if students give consentsuspicion if students give consent

***Private and parochial schools do not ***Private and parochial schools do not have to follow the 4have to follow the 4thth amendment amendment

2. Miranda Rights2. Miranda Rights Miranda rights must be given to accusedMiranda rights must be given to accused

“ “ You have the right to You have the right to remain silentremain silent. If you . If you choose to give up that right, anything you choose to give up that right, anything you say can and will be used against you in a say can and will be used against you in a court of law. You have the right to court of law. You have the right to speak to speak to an attorneyan attorney, and to have an attorney present , and to have an attorney present during any questioning. If you cannot afford during any questioning. If you cannot afford an attorney, one will be provided for you at an attorney, one will be provided for you at government expense.”government expense.”

3. Preliminary Hearing3. Preliminary Hearing Hearing before the judge to determine if Hearing before the judge to determine if

there is enough evidence to have the there is enough evidence to have the person bound for trial (writ of habeas person bound for trial (writ of habeas corpus)corpus)

Bail is set and cannot be excessive (8Bail is set and cannot be excessive (8thth amendment)amendment)

Bail can be denied to someone who is a Bail can be denied to someone who is a flight risk or a first degree murder caseflight risk or a first degree murder case

4. Grand Jury4. Grand Jury Determines whether a crime is committed.Determines whether a crime is committed.

Composed of 23 membersComposed of 23 members 12 members must agree to return an 12 members must agree to return an

indictmentindictment IndictmentIndictment – govt. officially charges the person of – govt. officially charges the person of

a crimea crime Plea – accused goes before the judge and Plea – accused goes before the judge and

enters a guilty or innocent pleaenters a guilty or innocent plea

5. Trial5. Trial Sixth amendment guarantees a speedy Sixth amendment guarantees a speedy

trial (after 120 days in most states, a trial (after 120 days in most states, a defendant goes free)defendant goes free)

Trial by jury (12 members)Trial by jury (12 members) PublicPublic

6. Verdict6. Verdict Not guilty the defendant goes freeNot guilty the defendant goes free Guilty – Judge passes a sentenceGuilty – Judge passes a sentence

Sentencing is done by the judge except in Sentencing is done by the judge except in murder and rape where the jury determines murder and rape where the jury determines the sentencethe sentence

7. Appeal7. Appeal A person not satisfied with the justice the A person not satisfied with the justice the

court dispensed may ask the appeals court dispensed may ask the appeals court to reconsider the lower courts court to reconsider the lower courts verdict.verdict.

1.1. Appeals court hears the evidence (three Appeals court hears the evidence (three judges)judges)a. May uphold the verdicta. May uphold the verdictb. Reverse b. Reverse c. Send back the case to be tried againc. Send back the case to be tried again