Right to Remain Silent!

The U.S. Constitution affords to every citizen the right to remain silent. This does not afford the citizen the right NOT to cooperate. It merely means that a citizen may choose not to answer questions or make statements against their will. If a Peace Officer stops a citizen, the Peace Officer is authorized to identify the citizen and the citizen is obliged to identify themselves, produce identification and automobile insurance, if requested and/or appropriate. Although the citizen may not resist physically, he/she does not have to answer questions or perform any physical “tests.”

Peace Officers and Investigators are trained professionals in the art of interrogation and evidence gathering. Unfortunately, those investigating a crime may have already come to some preconceived notions relating to whether or not you are guilty of that crime. Added to this, is the fact that the U.S Supreme Court and other lower courts – Texas included – have determined that those investigating a crime may be justified in telling you things that are deceiving, such as:

1. They are giving you an opportunity to tell your side
2. They are giving you an opportunity to prove your innocence
3. It will be better for you if you told them what happened
4. They are trying to help you
5. The Judge will be easier on you if you tell them what happened
6. They really know what happened, but just need to hear it from you for their records
7. They already have enough evidence to convict you and it will be better if you confess
8. They will make you a deal, if you cooperate with them

To begin, only the District Attorney or U.S. Attorney have the authority to enter into any “deals” concerning criminal prosecutions. Anytime a peace officer or investigator contacts you, you should contact an attorney for advice and under no circumstances should you meet with them alone.

This general advice is for two simple reasons: 1) Unfortunately, some officers will lie to you in an attempt to put you at ease; they may misconstrue your answers or take them out of context, which in turn might help them make a case against you, innocent or not; and 2) what your attorney tells the investigators cannot be used against you, so let your lawyer do the talking. If what they are telling you is true, it shouldn’t complicate matters to consult with an experienced criminal trial lawyer.

Right to an Attorney

Every citizen has the right to an attorney, especially a citizen who is under arrest and/or accused of a crime at any time that the citizen deems appropriate. If a citizen cannot afford an attorney, one must be appointed for the citizen. The Judge makes the decision as to whether or not the citizen accused can afford his/her own attorney. The citizen accused does not have the right to choose who is appointed and this is usually done at the arraignment or initial appearance. Attorney’s approved to accept appointed cases in Harris County are, by and large, perfectly qualified to represent an indigent person accused. However, a retained attorney usually has more time to devote to a client on a more personal basis. This, too, is a right – the right to hire an attorney of the citizen’s choosing.

Right to Have Charges Presented to a Grand Jury

A Grand Jury is a group of 15 citizens appointed by the Judge to determine whether or not the District Attorney has adequate evidence to present to a jury. All felony charges are required to be presented in an indictment to a Grand Jury to determine either “True Bill” or “No Bill.” A “True Bill” allows the District Attorney to proceed in its prosecution, while a “No Bill” stops the prosecution, however it does not prevent the District Attorney from presenting the case again to another Grand Jury. A citizen accused may waive indictment, but this is an unusual circumstance. Most presentations before the Grand Jury are without witnesses. A misdemeanor charge is commonly based upon an “information,” which is a sworn criminal complaint issued by the District Attorney and does not require an indictment, but in certain circumstances are presented for indictment.

The Grand Jury is vested with powers independent of the judiciary. The Grand Jury may investigate matters independent of the District Attorney, issue subpoenas, take testimony, gather evidence or other such measures they deem appropriate. A citizen accused may make a presentation and/or testify before the Grand Jury, however is not required to do so and only in the most appropriate of circumstances typically appear.

Right to Know the Charges Being Brought – Arraignment

The accused citizen’s first appearance after the Grand Jury returns a “True Bill” (indicts) is called the arraignment. The first appearance in a misdemeanor case may also be called the arraignment, however no Grand Jury action is necessary in misdemeanor cases. The arraignment is when the Court informs the citizen of the charge in the indictment or information, verifies the identity of the citizen accused, explains to the citizen his/her rights and accepts a plea to the charge. The plea is either not guilty or guilty, if no formal plea is entered, a not guilty plea is presumed. A not guilty plea can always be later changed to a guilty plea, if the citizen so chooses. Appointment of counsel usually occurs at this time, if the Court deems the citizen to be too poor to afford an attorney.

Right to a Jury Trial

Every citizen accused, no matter the charge, from the common speeding ticket to Capital Murder and Bank Fraud has the right that the State must prove their case beyond a reasonable doubt to a jury of their peers. Furthermore, the State must convince the Jury to return a unanimous verdict of guilty before the citizen can be found guilty of the charged crime.

Rights Against Unreasonable Search and Seizure

In order to search a vehicle, an Officer must have Probable Cause, which is facts and circumstances within the officer’s knowledge reasonably trustworthy to lead a person of reasonable caution and prudence to believe that the officer will find the instrumentality of a crime or that the person arrested is connected to criminal activity.

Before a Peace Officer can “frisk” you, the officer merely has to have some form of reasonable suspicion to stop you. The officer is authorized to “pat you down” to ensure for his/her safety that you are not armed.

A Peace Officer cannot enter your home without your permission, without either a search or arrest warrant. If the Peace Officer sees something “in plain view” that constitutes a crime, or exigent circumstances exist, only then may the Officer enter.

A Peace Officer’s threat of “getting a warrant” is no threat at all and actually required by the U.S. and Texas Constitutions.

Any evidence obtained through an unreasonable search is subject to exclusion.

As with all constitutionally protected rights, a citizen may waive those rights and give a Peace Officer permission to search and therefore, consent to the search.

Only a person who has a possessory interest in a house or car can give consent to enter and search. That means that a person who owns a vehicle or owns, rents or is a guest and actually staying in a house, apartment or even a hotel room all have a possessory interest in the property and can consent to a search or entry.