Constitutional Rights before and after Arrest - Research Paper Example

? Constitutional rights before and after arrest Sandra Clay Kellie Callahan POL:303: The American Constitution Constitutional rights before and afterarrest The theory of the United States Constitution was initially a resultant from the suppression of the general public who once suffered and tolerated the British rule. Rights were formed by the circlet and only were applied to those people the kingdom felt commendable. When charged of law-breaking, a civilian had very restricted defense and assurances of justice and appropriate procedure. In an attempt to offer definite and assured constitutional rights to individuals blamed of a wrongdoing, the Constitutional Alterations referred to the rights considered to defend citizens before taken into custody and to guarantee that arrests are centered on various accessible details. The sixth Amendment done to the Constitution of United States is the part of the Bill of Rights which put forward privileges associated to the prosecutions of the criminals. An arrest causes the withdrawal of an individual’s freedom by a police man or any individual with an officially authorized permission. Usually an arrest takes place when a person is alleged of carrying out a crime and therefore should be taken into custody. “Because an arrest is in effect a “seizure” it must conform to the probable cause and warrant requirements of the Fourth Amendment”(Otis.H.Stephens). According to the author arrests are frequently made in accordance to warrants build on initial inquiries so it is given out by a judge on apparent grounds. A court permits the investigation of a criminal activity by issuing a court order also known as writ. Therefore any investigation or arrest without a legal warrant is unfair and unconstitutional. A person has the right to demand as to why he is being arrested and the kind of allegation against him. An individual must see the warrant to be certain that his name exists on it and to confirm the charges. Moreover the person has the right to be informed of his constitutional rights also known as “Miranda rights” before he is interrogated after the arrest. These include the right to remain silent and refuse to cooperate without the consultation of your attorney as the police can utilize those answers against the person seized in the court. If an individual doesn’t meet the expense of a lawyer, he has the privilege to get a public defender without any cost and discuss his case with the attorney before further proceeding with the investigation. A person can also say no to every physical or medical test such as breathalyzer, lie detector etc. he also has the permission to contact any relative or important person to inform them about his arrest and so is allowed to make telephone calls. A person arrested with no warrant is required to be carried quickly before a court official for a credible hearing of the case. Most of the times suspects defend against arrest therefore the police might use physical force or violence to take them in custody. “The courts have generally recognized that the fourth amendment permits police to use only such force as is “reasonable” and “necessary” in effectuating an arrest” (Otis H.Stephens). Therefore the person being suspected should give in without much resistance and has the right to take legal action against the police if they violate this amendment. The fourth amendment has forbidden unfair investigations and seizures of individuals and their possessions without a legal warrant specifying the place to be explored or the person to be arrested. Now as discussed earlier the Fifth Amendment permits an individual to refuse giving a testimony that might convict himself both in judiciary and in answer to interrogation by the police. It also contains the clause of “Double Jeopardy’ in which it is not allowed to condemn a person twice for the same allegation. The sixth amendment however points out rights that are relevant in every criminal trial such as the right to an immediate and open hearing by an neutral panel of judges of the country in which the offense was done, becoming aware of the type of the accusation, the privilege to face witness, the right to force auspicious witness to come out at the court from the issuance of the court order to present the evidence. The amendment also allows the suspect to appoint an attorney in the criminal act cases and all the other cases of misdemeanor in which captivity and detention may be obligatory. These amendments are currently valid to all the agencies associated with the government whether state and federal in accordance the fourteenth amendment that says “no state shall make or enforce any law that will abridge (shorten) the privileges or immunities of citizens of the United States, nor shall any state Deprive any person of life, liberty or property without due process of law, nor deny to any person equal protection of the law.” At last the eighth amendment forbids unwarranted bail and brutal and abnormal punishment. After arrest the first concern for an individual is release or bail. An individual has the entitlement to be free if not the persecutor’s agency convince the court to issue a writ. Rights before trial: a happening identified as the “arraignment” is in which an individual accused is allowed to be informed about the charges against him and meanwhile he has the opportunity to hire the services of an attorney. In lawbreaking cases, an initial hearing is scheduled before the actual trial in which it is proved that the accused person has committed the crime. Usually the defendant is not presented before the jury but his appearance is necessary in the court. If the lawsuit goes to a first trial, the defense must make use of it as a way of finding out the proof against the arrested person. The defendant has a permission to know facts and proofs under the laws of criminal process. Moreover the defendant is also privileged to report some actions ahead of the trial in an attempt to prevent certain facts out of the hearing. These comprise actions to restrain physical proof and any thing said by the person accused. For instance, all those statements would be excluded in which a defendant after being in custody has given and has not being informed about the Miranda Warnings. In the same way any thing taken in custody without a warrant will be most likely barred from the trial. Some times if a defendant makes a decision to declare himself accountable of the crime he surrenders most of his constitutional rights. Basically they are the right for a trial with jury, to interrogate the witness from the state and to subpoena an eyewitness from his side. Most importantly an appeal is not registered in the high court if a person has confessed until the acceptance was not willingly given. In the cases where a defendant is not well or is in pain because of an illness therefore his hearing is detained and the person is given time to heal so he could actively proceed with his trial. Moreover if a defendant is proved to be suffering from mental disease that led him to the crime and therefore he has not consciously committed it he will be acquitted and his plea for insanity will be accepted. He will be ordered to be admitted in a mental health care facility and will not be freed until the approval of a judge is given. The defendant is also allowed to conduct and request a public trial with a neutral jury or he can either remove this right and chose the option of one judge. “All together these amendments, as interpreted by the courts throughout U.S history, set the minimum standards for due process of law for criminal defendants” (Hamid.R.Kusha) Rights after the trial: if for example a defendant is proved guilty and the trial gets finished the defendant can still ask for a pre sentenced inquiry. In this case the accused person will be summoned to the court after a month and then the court will carry the trial based on pre- sentenced inquiry. A petition of a person verdict as blameworthy is a chance offered by law to have a choice of a lower trial. It is extremely significant to recognize that a claim of being guilty to crime, unreservedly and willingly agreed by the defendant, will remove all of the privilege to a petition. Considering if a plea ought to be in use from a discovery of being culpable is a tough and a complex problem and demands considerable dependence on the decision of a lawyer. The issues to be taken into consideration are the kind of verdict the judge has made obligatory and the potential of accomplishment and the financial reasonableness of what might be an exceedingly expensive practice. In some cases where the defendant is of fourteen years, the juvenile court has the choice to make a decision if to verify the suspect as a grown-up or not. Now, found on rational doubt that a person may be caught up in illegal activity, a police official may keep him in custody and compel the individual to provide his identification and give details about the location at a specific time with no arrest.  The police officer possibly will not, though, eradicate the suspect from the instant surrounding area with no arrest until the suspect willingly goes along with him to another place. If the police have practical reasons to consider that a person is carrying weapons or that it might be hazardous to him or other people around him, the official may carry out a partial search of the individual’s clothes for the reason of finding out weapons.  If this body search results in the official believing that a person is accused of having an illegal weapon, he may charge the guilty and take it into custody. Although a person has the constitutional rights to remain silent and provide no personal information it is yet advised to cooperate with the police officer as it regards your safety. “ the American public law is generally described as a defendant’s law, in contrast with other legal systems which emphasize the necessities of the prosecution and give priority to the interests of society in the apprehension and conviction of criminals” ( David Fellman). The American constitution however lays great emphasis on the dignity of a man. The current rules have the basic purpose to discover the reality. According to Arthur T. Vanderbilt “there is no more important right in the law than the right to a fair trial, for without a fair trial all the rights vouchsafed by the sanative law are worthless” (Paul Bergman) In order to lessen the probability of injustice the constitution look for redressing the equilibrium between the defendant and the other party in some substantial degree by protecting the rights of a person after and before the arrest from some procedures such as enforced incrimination of the person, unfair search and investigation, double jeopardy, enabling him with the privilege to have an unbiased jury or a judge, statement by a assembly, the right of cross questioning the witness and other safety measures discussed before. The constitutional rights to a person before and after the arrest is not to pamper the guilty or to provide loopholes from which suspects or wrongdoers may escape the penalty of their crimes against the community. The sole reason is to make sure, as practically as the complication and perplexities of our society allows, that the reality be exposed and the justice will be carried out. References David Fellman, “Defendants Rights Today” published 1976 Published by the University of Wisconsin Press Paul Bergmann, Sara Berman, “The criminal law handbook: know your rights, survive the system” (1997) Hamid.R.Kusha “Defendant rights: a reference handbook” ABC-CLIO Inc Otis H.Stephens, Richard A. Glenn “Unreasonable searches and seizures: rights and liberties under the law” (2006) ABC-CLIO Inc Otis H.Stephens, John M. Scheb “American constitutional law: Civil rights and liberties” (2008) published by Rosen Berg . Read More