Important Criminal Defense Constitutional Rights

First Amendment Rights

Right to Free Speech (1st Amendment)

Like the Fourth Amendment, the First Amendment could have an entire library filled with books about the Rights that stem from the First Amendment. A common one in criminal defense (and some civil cases) is your Right to Free Speech. Our society values the input of ideas from everyone, and protects all speech unless it is deemed of so low social quality that it is not protected. There are a number of types of speech that are not protected, but probably the most common type of unprotected speech is “Fighting Words.”

Right to Gather Peaceably  (1st Amendment)

We often don’t think of this, but there are some countries where it is illegal to gather and protest. The key here is “peaceable.” Once a protest isn’t peaceable, it is often viewed as anything from disorderly conduct to a riot. If you are arrested in connection with a protest, it is important you contact a criminal defense attorney to make sure your constitutional rights are protected.

Right to Petition the Government to fix problems (1st Amendment)

This is pretty cool. Our federal Constitution begins with “WE THE PEOPLE. . .” One way we govern ourselves is through elections. Another is through Petitions. If you don’t believe me, visit This particular right doesn’t come up too often in criminal defense, but sometimes is relevant to cases in which protestors have been arrested.

Second Amendment Rights

Right to Bear Arms (2nd Amendment)

This is certainly a hot topic. It is important to know that this Constitutional Right has been regulated  up and down the government system. Locally, there are some odd laws on the books, like Kennesaw’s requirement that every head of household in the city limits being required to maintain a firearm and ammunition for it. There are also state and federal laws regulating this right, and those prohibitions routinely come up in criminal defense cases. There are also justification laws (like self defense, defense of others, etc.) that may be applicable in your case.

Fourth Amendment Rights

Right to be free from Unreasonable Searches and Seizures (4th Amendment) (“Warrant Requirement)

Many books have been written on the Fourth Amendment. It boils down to this. If the government does NOT have a warrant, that search is unconstitutional UNLESS an exception applies. There are a number of exceptions that the government uses. You need to hire an experience criminal defense attorney to push back against all the exceptions. If you don’t fight, the government will just make more exceptions until this Right all but disappears. This particular Right pops up frequently in the media, dealing with privacy laws. Remember when the Government wanted Apple to unlock an iPhone a few years ago? Apple said “no.” Despite your stance on Apple/Android, we should all be thankful that in that instance, at least, they stood up for everyone’s Fourth Amendment Right.

Fifth Amendment Rights

Right not to Incriminate yourself (right to remain silent) (5th Amendment)

This is a fun area of criminal defense in Georgia, because Georgia’s State Constitution grants MORE constitutional rights to individuals. Georgia’s analogous provision is found at Article I, Section I, Paragraph XVI, and protects individuals from being compelled (“required”) to perform incriminating ACTS on top of the US Constitution’s ban on compelled incriminating testimony. This has played out in the Georgia Supreme Court in recent years, concerning breath testing in Georgia, and custodial field sobriety tests. Adam Brown worked for two prestigious DUI firms that were instrumental in getting refusals to submit to breath testing deemed unconstitutional under Georgia’s constitution.

Right to be Presumed Innocent (Combination of Multiple Amendments)

If you read the text of the United States Constitution, you will not find anything about the “presumption of innocence.” That is because this right comes from a combination of a number of other Rights listed in the Constitution, namely the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. The Due Process Clauses of the United States Constitution, especially the Fifth Amendment, states that nobody shall be “deprived of life, liberty, or property without due process of law.” This, along with other statements, points to what we commonly know as the presumption of innocence.

Right to an Indictment in Certain Cases (5th Amendment)

A document that usually starts criminal prosecutions is an arrest warrant. Think of this as “police charges.” Arrest warrants are reviewed by local Magistrate Judges to make sure there is probable cause to arrest someone for an alleged offense. The case the progresses through to the local prosecuting attorney, who decides whether or not to try to get “formal charges.” Suffice it to say, if they want to bring “big” formal charges, you are entitled to an indictment by a grand jury. Grand jury proceedings are secret, where only the prosecutor and their witnesses can attend. Neither criminal defendants, nor their attorneys, can attend grand jury proceedings with one glaring exception for criminal defendants who are also cops. If an officer is charged with committing a crime while in the line of duty, that cop is allowed to offer their testimony in defense of their actions. If, on the other hand, the prosecutor wants to only file for misdemeanor charges, they can do so by filing an “Accusation” instead of an indictment. An accusation is also a document that lists formal charges, but it is not issued by a grand jury–instead it is issued by the prosecuting attorney. Since an Indictment or Accusation each involve the government’s formal allegations, you are then entitled to enter your formal response to those allegations during Arraignment. Of course, at arraignment your answer should be NOT GUILTY.

Right to Due Process of Law (5th Amendment)

Simply put, in criminal cases, there are no “default judgments” like those found in civil cases. In criminal cases if the case is not dismissed beforehand, you either go to trial and get a decision from a judge or a jury, or you plead it out. If you fail to show for court, you will likely get a new “Failure to Appear” charge, but you will not automatically be found guilty.

Right Against Double Jeopardy (5th Amendment)

There are a lot of misconceptions about this right, especially considering there is both procedural double jeopardy and substantive double jeopardy. Most folks know the substantive type. The procedural double jeopardy is often looked at as a “gotcha” tactic to get portions of a case thrown out, but it is still a tool that an experienced criminal defense trial lawyer ought to have in their tool belt. This right essentially stands for the proposition that once “jeopardy” has attached (through either the second-swearing of the jury in a jury trial, or the swearing of the first witness in a non-jury trial), you cannot be retried for that offense, especially if it is a not-guilty decision is handed down. In certain limited circumstances, such as if a “guilty” verdict is overturned on appeal, you may be retried.

Sixth Amendment Rights

Right to an Attorney (6th Amendment)

This is a sometimes misunderstood right. Simply put, you have the right to hire any lawyer you want to represent you in your criminal defense. In Georgia, if you cannot afford a private attorney, you can apply for a court-appointed attorney. If you are approved for an appointed attorney, the Georgia Public Defender’s Council (through their local office), or the judge (in some certain counties) will appoint a licensed attorney to represent you. If you are appointed a lawyer, you do not get to choose who your lawyer is.

Right to a Speedy and Public Trial (whether by jury or judge) (6th Amendment)

Many prosecutors offices bang their head on the wall about “speedy trial demands.” That is because there are actually two different types of speedy trial demands–statutory and constitutional. The Statutory speedy trial demand in Georgia is somewhat of a “nuclear option” for criminal defendants, where if certain quick deadlines aren’t met, the case is required to be dismissed. What the Sixth Amendment deals with, though, is the Constitutional Speedy Trial requirement. A constitutional speedy trial demand still asserts the right to a speedy trial, but it does so in a softer way. To win a Motion to Dismiss for an alleged violation of your Constitutional Right to a Speedy Trial, defendants must present evidence that the Two-Part test (involving analysis of four factors) described in Barker v. Wingo, 407 U.S. 514 (1972), and Doggett v. United States, 505 U.S. 647 (1992). There are strategies to better your chances of winning such a motion, and you should contact an experienced criminal defense trial lawyer immediately if you want to explore this option.

Right to Confront Witnesses (6th Amendment)

The right to cross-examine your accuser is one of the most powerful tools a criminal defendant has. The statutory cousin of the right to confront witnesses (hearsay) is commonly featured in legal movies. Only an experienced and well-studied criminal defense trial lawyer (or very luck pro-se individual) will know how to properly lodge an objection to violations involving hearsay, confrontation issues, or combined hearsay and confrontation issues, or hearsay within hearsay, etc. Many criminal appeals are lost because the trial lawyer didn’t realize the devil is in the details here.

Right to Subpoena Witnesses (6th Amendment)

The defense in a criminal case is allowed to subpoena whomever and whatever they think is necessary. This may include officers, doctors, experts, reports, and many many other things. If you issue the subpoena correctly, and your witness doesn’t show up, you can then have the judge order that they be arrested and brought to testify. Pretty powerful stuff.

Right to Testify, and Offer Other Evidence (Combination of Fifth, Sixth, and Fourteenth)

This is a relatively new fundamentally guaranteed constitutionally right, derived from a combination of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. In fact, up until 1987, the issue was still argued. See Rock v. Arkansas, 483 U.S. 44 (1987). When comparing this right with the Right to Remain Silent and Not Testify, it is important to understand that if a criminal defendant chooses NOT to testify in their own behalf, juries are NOT allowed to consider that as evidence that the defendant is guilty.

Eighth Amendment Rights

Right Against Excessive Bail (8th Amendment)

This is a common hot topic that varies widely county to county. In some counties, you can get a $5,000 bond on an aggravated assault charge. In others, it might be $100,000. Preset bonds can sometimes expedite the bonding out process, especially for low-level misdemeanors. However, in today’s society, preset bonds are often still too high for clients to get out. Bonding companies (also called “sureties,” often charge a fee ranging from 10% to 15% of the stated bond amount (i.e. $250+ on a $2,500 bond). The Law Office of Adam D. Brown puts incarcerated individuals ahead of all other pressing matters, and Adam will work doggedly to get your bond reduced to a reasonable level.

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