The basic rights of a citizen under arrest are guaranteed by the Fifth, Sixth and Eighth Amendments to the United States Constitution.
Fifth Amendment – no person shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property without due process of law
Sixth Amendment – in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury, and to be informed of the nature and cause of the accusation, to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
Eighth Amendment – excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishment be inflicted.
Since the enactment of the Fourteenth Amendment to the Constitution, these rights are also guaranteed by the individual states. The Fourteenth Amendment provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
The US Supreme Court has ruled that as soon as you are taken into custody you must be informed of the following:
1. You have a Constitutional right to remain silent.
2. Anything you say can be held against you.
3. You have the right to legal counsel and that if you cannot afford an attorney, one will be appointed for you.
4. If you choose, you may have a lawyer present during any interrogation.
Remain Silent
If arrested, the most important right that you can exercise is your right to remain silent. Beyond giving proper identification, you should not answer any questions of the law enforcement officer that would in any way tend to establish any element of a crime. Since the average individual does not often know what statements may later be used against him, the best advice is to remain silent. Many individuals feel that they officer may “let them go” if they give an adequate explanation or tell the officer what he, or she, wants to know – Resist this temptation! It is equally obvious that you should not make any written or recorded statements. The results can be disastrous. It is not rude to decline to answer the questions of the law enforcement officer, you are merely exercising your constitutional rights. You can inform the officer that you choose not to respond unless, and until, your attorney is present.
Remember, you have the legal right to ….
- Refuse to talk to the police or answer any question
- Refuse to sign, write out, or record any statement.
- Attempt to contact a lawyer, and, if you cannot afford an attorney, to have an attorney provided for you before you answer any questions
Exercise your right to counsel
Ask to speak with an attorney as soon as possible. You should be given the opportunity to make a reasonable number of calls to contact an attorney and a member of your family. You are not required to hire the attorney you contact for advice to represent you in the event that you are eventually charged with a crime. However, common courtesy should dictate that you pay the attorney as soon as possible for his actual services rendered.
Do Not Waive (Give Up) Your Rights!
Within a short time after being taken into custody, you will most likely be booked by having the entry of the charge against you placed in a record known as the arrest book or police blotter, you will most likely be finger-printed and photographed.
If the crime charged is a misdemeanor, after a reasonable period of time, sometimes overnight, the arrestee may be released with a summons to appear in court at a later date. Frequently, there is a prescribed bond (bail) for certain classes of misdemeanors which must be posted prior to obtaining release.
If the crime charged is a felony, the defendant will be released upon payment or posting of the amount of Bond (bail) previously set by the Judge when the warrant was issued. If bond has not been set, as in the case where the alleged crime just occurred, you will not be released until the bond has been set by the Court.
How Long Will a Defendant Remain in Jail Awaiting Trial?
Only rarely will a defendant be held in Jail until the time of his or her trial. The Eighth Amendment provides that excessive bail shall not be imposed, and accordingly that reasonable bail shall be allowed. Unless a defendant is deemed to be a flight risk, or dangerous to himself, or the community, a reasonable bond will be ordered as a condition of the defendant’s release. The Judge will determine the conditions of the bond, including the amount of money (or sometimes property) that must be posted and the date when the defendant must appear in court. If bond has not been set, your attorney can request a bond from the Judge. If bond has previously been set, your attorney can request that the amount be lowered, that only a percentage be posted, that a property bond be allowed, or that the requirement of a cash bond be eliminated entirely, allowing you to be released upon your own “recognizance.” The primary purpose of Bond is to ensure that you will appear in court.
DISCLAIMER: THE FOLLOWING INFORMATION WAS OF A GENERAL NATURE AND NOT MEANT TO CONSTITUTE LEGAL ADVICE OR TO BE USED IN, OR APPLIED TO, ANY INDIVIDUAL SITUATION. THIS GENERAL INFORMATION IS APPLICABLE TO THE STATE OF MISSOURI AND MAY NOT BE VALID UNDER THE LAWS OF OTHER STATES. IF THE READER HAS SPECIFIC LEGAL QUESTIONS, HE OR SHE SHOULD CONTACT AN ATTORNEY.