Freedom of Speech

An individual’s freedom of speech is not unlimited, and there are many examples of “speech” which have been deemed criminal under federal and New York State law. Some examples include obscenity laws, harassment laws, and  “hate crimes,” in which offense levels and sentences can be enhanced if an individual utters racial, ethnic, or homophobic slurs in conjunction with the commission of a crime.

Right to Bear Arms

Possession of unregistered or otherwise outlawed firearms constitute crimes under both New York State and Federal Law. For an analysis of this very controversial, politically charged issue visit these sites:

Unreasonable Searches and Seizures

Because a defendant has protections under the Fourth Amendment against unreasonable search and seizure, you may be entitled to have any evidence illegally seized from you suppressed as evidence against you at a trial. This is accomplished by way of pre- trial physical suppression motions and hearings.

Probable Cause

New York courts have defined probable cause for an arrest as follows:

“An arrest is justified upon finding a probable cause based upon information sufficient to form a reasonable belief that a person has committed a crime.”People v. Bigelow, 66 N.Y.2d 417

Determinations as to what constitutes probable cause are complex and very fact specific, since each case is different. A defendant can assert that the police did not have probable cause for an arrest by way of pre-trial motions and hearings.

Indictment of a Grand Jury

Generally speaking, a person may not be tried on a felony in New York without first having the case presented to a grand jury. The grand jury must determine that there is sufficient evidence to warrant the charges by returning what is called a true bill.

Twice put in Jeopardy of Life or Limb

The constitution protects individuals against being tried twice for the same crime. Recently, there has been much controversy over what some legal scholars see as an attempt by the federal and state governments to violate this constitutionally protected right.
In a number of highly publicized cases, federal charges were brought against citizens acquitted by state juries. Although double jeopardy arguments were made, it seems that appellate courts will allow these prosecutions. Federal prosecutors generally bring civil rights violations against these citizens, and argue that the crime is different, although the underlying facts are often identical. An example includes the federal prosecution of the Los Angeles police officers who were aquitted by a state jury of beating Rodney King.

Civil Forfeiture is a growing area of law in which an individual can both be prosecuted criminally, and subject to forfeiture of his property in quasi related or separate proceedings. Double jeopardy arguments have been made to oppose these forfeitures. For further discussion of civil forfeiture, explore Fear‘s website.

Witness Against Himself

Every United States citizen has the right to remain silent and not to provide evidence against himself. It is law throughout the United States that the police may not question a suspect about a crime without advising the suspect of his right to remain silent. If a statement is taken from a suspect without that person first being advised of his rights, the defendant can move to have his statement suppressed as evidence at his trial. This can be accomplished through pre-trial motions and hearings.

Many people are under the misconception that the police must read a suspect his rights after he is arrested. The police are only obliged to read a suspect his rights if they intend to take a statement from the suspect.

Due Process

The concept of due process of law as it is embodied in the Fifth Amendment demands that a law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a reasonable and substantial relation to the object being sought. U.S v. Smith, D.C. Iowa, 249 F.Supp.515,516

The above cite from a federal case is a pretty good definition of due process. Arguments alleging violations of this right are very fact specific and are subject to complex legal argument and precedent.

Speedy and Public Trial

New York State law establishes specific time periods within which an accused must be tried, depending on the charges. A defendant also has rights to certain preliminary hearings, indictment presentations, and arraignment within prescribed time periods. Motions for dismissal can be made alleging denial of these speedy trial rights.

History of the Jury

The right to a trial by jury in the United States can be traced back to English common law and the Magna Carta of 1215. Juries were created to ensure that trials would be decided by the people, and not the government. Implicit in this right was the jury’s power to decide the facts of a case, the law of a case, and to decide whether or not to enforce a law based upon its own sense of justice.  Perhaps the most famous example of the jury’s power in Colonial America was the John Peter Zenger trial, although this case is more frequently cited in affirming “free press” and “free speech rights.” Zenger was accused of “seditious libel” for publishing material that embarrassed the Governor of New York. On August 5, 1735, twelve  jurors ignored the instructions of the Governor’s hand-picked judges and returned a verdict of “not guilty” on the charges.

Since then, our nation has repeatedly affirmed the virtually unlimited power of the jury as the last bastion of the people against government tyranny.  In the words of John Adams, “It is not only his right, but his duty…to find the verdict according to his best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Thomas Jefferson considered trial by jury “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The United States Supreme Court has frequently recognized the right of a jury ” to bring a verdict in the teeth of both the law and facts.” Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning v. District of Columbia, 138 (1920).

Nevertheless, recent court decisions on both the State and federal levels seem to be watering down this right, or at least permitting judges to mislead jurors with regard to their powers.

To learn more about these issues, visit the Fully Informed Jury Association’s website.

Impartial Jury

In theory, all U.S. citizens accused of a crime are entitled to an impartial jury. In practice, there is no way to be certain that an individual juror is impartial. In most jurisdictions, the attorneys have some input as to the choice of individual jurors, although the trend is toward allowing the judge to select the jury. In New York, individual lawyers still select the jury. Federal case law prohibits the exclusion of jurors solely on the basis of race.

Assistance of Counsel for Defense

Individuals accused of a crime have the right to be represented by an attorney. As a general rule, a person has a right to the attorney of his or her choice, but this right is not unlimited. The lawyer must be admitted to the jurisdiction in which the prosecution is being brought, and in the case of an indigent defendant who receives a free attorney appointed by the court, the defendant usually cannot choose his or her lawyer. In rare instances, the court may prohibit a defendant from being represented by a particular lawyer. For example, John Gotti was not permitted to have his chosen attorney represent him in federal court, and the decision of the judge was upheld on appeal.