You know how in movies, the bad guys always feels the need to give some long, explanatory speech right before he attacks, which leaves juuuuust enough time for the hero to swoop in and stop the attack?

You ever think to yourself, “Dear God, just shut up already. You’re making it worse. They’re gonna get you”?

Sometimes, being a defense lawyer is a bit like watching a movie where the character just keeps talking, even though the audience knows it’s going to screw him in the end. It’s why we’re always telling our clients not to talk to the police without an attorney present. The law even says you don’t have to talk.

Miranda gives you permission to keep your mouth shut

Most people are familiar with the phrases “Miranda warnings” or “Miranda rights.” The first part of the Miranda warnings is that “You have the right to remain silent. Anything you say can be used against you in court.” That warning is based on the Fifth Amendment to the US Constitution. (The Fifth Amendment originally applied to federal cases, but it now applies to state cases, too.)

The Fifth does even more than that, though. The relevant parts of the Fifth Amendment that provide protections for defendants are:

The right to a presentment or grand jury indictment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

Most states have a grand jury system which dates back to the British days of lore. The rules for grand jury operation are set by the federal or state legislatures. Grand juries generally have broad authority to investigate criminal conduct. Defendants have limited rights with regard to grand jury investigation unless the prosecution decides to prosecute. Once an indictment is brought, the defendant can defend himself/herself asserting all legal and factual defenses that apply.

Double jeopardy protection

“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

This part of the Fifth Amendment essentially means that a defendant can’t be charged for the same crime twice. The prosecution only gets one chance to prove its case in the same jurisdiction. A defendant can’t be tried for the same offense if the first prosecution resulted in an acquittal or in a conviction. Double jeopardy also means the defendant can only be punished once for the same offense.

There are exceptions. Defendants normally can be charged for the same criminal conduct in both federal court and state court. There are often questions about whether jeopardy has attached: if the case starts but the prosecution withdraws the case before a jury decision or there is a mistrial, is that double jeopardy?

The right against self-incrimination

“[N]or shall be compelled in any criminal case to be a witness against himself.”

The Fifth Amendment originally just applied to giving testimony against oneself in the courtroom. The Miranda v. Arizona Supreme Court case extended the Fifth Amendment to any time after a defendant is taken into custody. Once the person is in custody, all their Miranda rights start. Cases often revolve around the timing of any questions by the police. Police aren’t required to give Miranda warnings for asking questions before custody attaches. Like the exclusionary rule, statements made by a defendant against his/her interest after custody starts should be suppressed/excluded – unless the suspect/defendant waived his/her protection against self-incrimination. Suspects/defendants should know what they’re waiving and do so voluntarily.

The right to due process

“[N]or shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

Due process essentially means that defendants will be treated fairly. Due process is normally broken down into two parts:

  • Procedural due process. Defendants should have the right to be heard, have proper and timely notice of the litigation, and things like that.
  • Substantive due process. This means that basic rights such as not being judged on race, sex, or other factors should apply.

At Drew Cochran, Attorney at Law, our Annapolis defense lawyers have been fighting for the accused for nearly 20 years. We regularly advise clients that they shouldn’t volunteer any information. It is my job as your lawyer to speak for you. No matter offense you’ve been charged with, I can help. To make an appointment, call our skilled Annapolis and Ellicott City defense attorneys at 410.777.8103, or use our contact form.

Remember: Keep Clam – and Call Drew