Understand Your Rights

1. What exactly is Due Process?

The United States Constitution requires that the government (State or Federal) cannot take away your life, liberty or property without due process of law. This sounds very grand, but what it means to you in a practical sense is that the State of Texas or U. S. Federal Authorities cannot put you in jail (take away your liberty) without following all the proper procedures. So what are the proper procedures? Texas has adopted a Code of Criminal Procedure, as have the Federal Authorities (U.S. Code Title 18). These Codes are sets of laws that govern everybody’s role in a criminal case. This includes the police, prosecutors, defense lawyers, judges, and juries. These Codes are in place to help insure that the protection promised by the U.S. Constitution is actually carried out by the State of Texas and Federal Authorities. At every stage of a criminal case, there are “hoops” that the Government has to jump through. These procedural hoops are extremely important to protect your rights and individual liberty. Your Defense attorney should know how the process is supposed to work and can fight to make sure the Government has jumped through every hoop.

2. Your Constitutional Rights

You have many rights under the United States Constitution, but the following is a list of those that relate most directly to a criminal law case. These all come from the Bill of Rights, which are the first 10 amendments to the Constitution.

  1. From the 4th Amendment
    • The right to not have your home, papers, property and body searched unreasonably
    • The right to not have your home, papers, property and body seized (taken by the government) unreasonably
    • The right to have search warrants and arrest warrants based on probable cause
  2. From the 5th Amendment:
    • The right to a Grand Jury for capital crimes (those which carry the death penalty) and other felonies
    • The right to not be put in jeopardy (put at risk) twice for the same crime
    • The right to not testify against yourself
    • The right to due process of law before the government can take away your life, liberty or property
  3. From the 6th Amendment:
    • The right to a speedy and public trial
    • The right to an impartial jury from the state and district where the crime was allegedly committed
    • The right to be informed of the nature of the crime you are accused of
    • The right to confront the witnesses against you
    • The right to call your own witnesses
    • The right to have a lawyer help defend you
  4. From the 8th Amendment:
    • The right that your bail not be excessive
    • The right that any fines not be excessive
    • The right to not be punished in a cruel or unusual manner
  5. From the 14th Amendment:
    • The right to equal protection under State law
    • The right to due process under State law

All of these rights have been tested and re-interpreted over the years, but still remain vital today. Your criminal defense attorney can tell you how these rights will work for you.

3. Your Right to Counsel

You actually have two different rights to counsel. There is a right to counsel while you are being questioned by the police in the 5th Amendment. Under the 6th Amendment, you have the right to have a lawyer defend you, and the court will appoint one for you if you can’t afford one on your own. Your 6th Amendment right to counsel generally only comes into play when you are facing formal charges or an indictment. However, the right can also apply to pretrial lineups, and may even apply when the focus of a criminal investigation rests on you. For the right to counsel to apply in a misdemeanor case, the charge must carry with it a sentence of six months. There is not a right to counsel in cases which carry a fine only – like a speeding ticket. Even when you do not have a RIGHT to counsel, you will still be permitted to hire a lawyer on your own. Having “the right” to counsel in this sense means that the court must appoint a lawyer for you if you: a) cannot afford one, and b) request that the court appoint a lawyer for you.

  1. If You Can’t Afford An Attorney
    • To get the Court to appoint a lawyer for you, you will have to prove to the Court that you are indigent. “Indigent” is a nice way of saying that you fit the legal definition of broke. In making its determination of whether or not you are indigent, the Court may consider:
      1. Your income
      2. The source of your income
      3. Any assets and property you own
      4. Any outstanding obligations or debts
      5. Your necessary expenses
      6. The number and ages of dependents
      7. Your spouse’s income to the extent that it reflects the your financial circumstances – whether you have posted or are capable of posting bail
    • If you are requesting that the Court make a determination of indigency so that you may be appointed a lawyer, you must:
      1. Complete under oath a questionnaire about your finances – this is called an “Affidavit of Indigency”
      2. Answer questions under oath that the judge or magistrate asks you about your financial resources
      3. Or BOTH of the above.
    • Before the Court can rule that you are indigent, you will be asked to sign a statement that will look essentially like this:
      • “On this ________ day of ____________, 20 ___, I have been advised by the (name of the court) Court of my right to representation by counsel in the trial of the charge pending against me. I am without means to employ counsel of my own choosing and I hereby request the court to appoint counsel for me.(Your Signature)”
    • Once the Court has determined that you are indigent, the court will continue to presume that you are indigent through the rest of your criminal proceedings.
      The Court does appoint an attorney for you, that attorney will have certain obligations. Your court-appointed attorney MUST:

      • make every reasonable effort to contact you not later than the end of the first work day after the date the attorney is appointed; and
      • interview you as soon as possible after the attorney is appointed; and
      • represent you until charges are dismissed, you are acquitted, your appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record.
  2. What If I want to waive counsel?
    • You can, of course, waive your right to an attorney. We at The Wright Firm, L.L.P. DO NOT recommend that you waive your right to counsel. However, should you make the decision to do so; you must do so voluntarily, intelligently and in writing. “Voluntarily” means that no one has forced or coerced you into waiving your right. You must make the decision of your own free will. An attorney for the state (in other words, the prosecutor) cannot encourage you to waive your right to counsel. “Intelligently” means that you truly understand the decision you are making, know what the consequences are, and choose to accept those consequences. If you want to waive your right to counsel, the Court must first explain to you the nature of the charges against you, and the dangers and disadvantages of representing yourself at trial. If you still want to waive your right to counsel, the Court will give you a statement to sign which will look essentially like this:
      • “I have been advised this ______ day of __________, 2 ____, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel.(Your Signature)”
    • Be Aware! You can change your mind at ANY TIME if you have waived your right to counsel. BUT YOU WILL NOT GET A “DO-OVER”! Any hearing that did not go in your favor because you chose not to have a lawyer represent you cannot be repeated to give you a second chance.