Children of the 70’s are at least somewhat familiar with their Constitutional rights, largely because of this memorable ditty. But an alarming number of people know little or nothing about their specific rights. It’s very easy, and very tempting, for police officers to bully such people.

Some provisions in the Bill of Rights, the first ten amendments to the Constitution, are outdated. The Third Amendment’s prohibition of quartering soldiers comes to mind. America’s defense budget is plenty large enough to build barracks.

But the provisions in the Bill of Rights concerning criminal law matters are as applicable as ever. In fact, they may be even more important today. Plea bargains resolve most criminal cases. So, many criminal law proceedings happen behind closed doors.

The Eighth Amendment’s guarantee of reasonable bail in criminal cases is probably the most important one to the bail bondsman near you at Fizer Bonding Company in Montgomery and Robertson Counties. It’s arguably the most important one to criminal defendants as well. Prompt jail release makes the other rights easier to access and enforce in court. However, this guarantee is just one of many in the great United States of America, a country unlike any other one.

Search Warrants

The obscure anti-quartering provision was rooted in pre-Revolutionary War America. British authorities sometimes forced colonists to house Redcoats against their will.

The search warrant rule has similar roots. Before 1776, British authorities used blank search warrants to search suspicious property at will. So, the Fourth Amendment requires search warrants to be based on affidavits which show probable cause.

“Probable cause” is a low standard of evidence. However, authorities usually don’t have much evidence when they ask a judge for a warrant. That’s the reason they want a warrant to begin with. Investigators have considerable discretion in this area. But they don’t always get the benefit of the doubt.

Alternatively, a narrow search warrant exception could apply. Owner consent is probably the biggest one. Others include the plain view exception and the exigent circumstances (emergency situations) exception. 

Grand Jury Indictment

This right is pretty much the only one in the Bill of Rights that only applies to the federal government. Additionally, this requirement only applies to federal felonies. Tennessee state courts sometimes use grand jury indictments. More often, however, the criminal charges are based on a police officer’s affidavit that’s much like a search warrant affidavit.

A grand jury indictment itself is largely a formality. The grand jury indictment rate is over 99 percent. That’s largely because grand jurors only hear prosecuting attorneys and the evidence they present. In other words, they only hear one side of the story. 

But this provision in the Fifth Amendment establishes an important principle, in state and federal court. Authorities cannot randomly charge individuals with crimes. Instead, there must be some independent basis for the charges, such as a police officer’s affidavit or a grand jury indictment. This right is similar to the Sixth Amendment’s “nature and cause” provision, which is discussed below.

Double Jeopardy

Under the Fifth Amendment, people cannot be charged twice for the same crime. That may seem like a no-brainer. But prosecutors would gladly do so if it were possible. For example, if Montgomery County prosecutors tried Robert for murder and weren’t able to convict him, they’d eagerly try him for attempted murder, but for this Constitutional right.

This right is also quite controversial. Under the so-called separate sovereignties exception, state and federal authorities may each charge a defendant with the same crime, if it’s illegal under state and federal law. Most drug prosecutions could fall under this exception. Many advocates have tried and failed to convince courts to end this exception.

Additionally, the double jeopardy rule only applies if the two offenses were substantially similar. This term is a bit subjective. We mentioned murder and attempted murder above. These infractions are clearly substantially similar. But what about murder and aggravated assault? These offenses might be different enough to bypass the double jeopardy prohibition.

Self-Incrimination

Even if your knowledge of Constitutional law only comes from Mannix reruns, you probably know about the right to remain silent. However, Mannix is very misleading as to when this right applies and how much territory it covers.

On TV, as soon as officers say “you’re under arrest for X,” they launch into the “you have the right to remain silent” bit. In the real world, however, the right against self-incrimination begins when custodial interrogation begins. 

The average American citizen or country visitor may find it shocking that for all practical purposes, people are in custody when they see flashing lights in their rear view mirrors. Reasonable people don’t feel free to drive away at that point. 

Similarly, “interrogation” isn’t limited to questions about a crime. Any question constitutes interrogation. Assume Officer Bob pulls over a suspected drunk driver, approaches the car, and says “license and registration please.” Officer Bob doesn’t necessarily want those papers. He wants to determine if the driver’s reflexes are slow or there is other evidence of intoxication.

Due Process

This provision in the Bill of Rights is much like one in the Fourteenth Amendment, which was enacted during the Civil War. Due process usually requires authorities to provide notice and an opportunity to be heard before they deprive anyone of life, liberty, or property.

Of course, the defendant can waive this right in a criminal case and plead guilty. As a matter of fact, people can affirmatively waive almost any Constitutional right.  

The aforementioned right to remain silent is a good point. Current law requires defendants to assert their right to remain silent. Simply not saying anything could be construed as a waiver. Remember though, best to do this with tact and diplomacy when exercising this with an officer during a traffic stop. 

Jury Trial

Mostly because of this Constitutional guarantee, 90 percent of the world’s jury trials occur in the United States. But criminal defendants in Tennessee aren’t just entitled to any old jury trial. The forum must meet certain rules which are set out in the Sixth Amendment. These requirements are:

  • Local: Prosecutors would move Robertson County trials to Alaska if they could. It’s usually quite easy to convince jurors to convict a stranger. Convincing them to convict a neighbor is another matter.
  • Impartial: People often confuse “ignorance” with “impartiality.” There’s no Constitutional or other requirement for jurors to know nothing about the cases they consider. They must simply be impartial. They must not have strong feelings either way. Additionally, jurors must remain impartial throughout the trial. Prosecutors cannot appeal to their emotions.
  • Public: This requirement has to do with another I-word, which is integrity. For example: If I don’t think anyone is watching, I usually do lots of things I shouldn’t. But if events are public, prosecutors, defense lawyers, judges, and all other professionals are usually on their best behavior.
  • Speedy: This requirement has little to do with time. Instead, it’s mostly about opportunity. To use a rough analogy, you have the right to get into the checkout line at Walmart right away. But if you have to wait, you have to wait.

Most criminal cases settle out of court. But the right to a jury trial, and the strict rules that come with this right, encourage prosecutors to deal fairly during plea negotiations.

“Nature and Cause of the Accusation”

This Sixth Amendment right seems almost identical to the Fifth Amendment’s right to a grand jury. But looks are often deceiving.

The “nature and cause” requirement implies that the criminal charges must be specific. To return to a previous example, prosecutors cannot simply charge Robert with murder. They must charge him with killing a specific person at a specific time in a specific place. Therefore, Robert’s lawyer is better able to prepare his defense.

Police officers need not inform defendants of the specific charges at the time of arrest. If Robert knows he’s being charged with murder, he might put up a fight at the arrest. However, officers usually need to fulfill the “nature and cause” requirement before the case goes to court.

Witness Confrontation

This Sixth Amendment rule is the reason criminal courts didn’t use virtual jury trials during coronavirus lockdowns. In most cases, defendants have the right to eyeball the witnesses against them. It’s rather easy to make false or questionable accusations on social media or via third-party gossip. It’s a lot harder to make these statements when you are looking the other person in the face.

Furthermore, live cross-examinations are much more effective than virtual or telephonic cross-examinations. The classic just one more thing trick is a good example. Lawyers act like they are finished asking questions, the witness relaxes, and then the lawyer asks the big question. 

Witness safety sometimes affects this requirement. If the witness reasonably fears serious retaliation, the judge will most likely make some accommodations. Roughly the same principle applies in some child sex offense cases.

Subpoena Power

The defendant does not have the burden of proof at trial. So, the defendant does not need to call any witnesses. However, defense lawyers often introduce evidence for strategic purposes. Additionally, defense lawyers sometimes call character witnesses, especially during a trial’s punishment phase.

Prosecutors have almost unlimited power to subpoena witnesses and compel them to testify. The Constitution gives criminal defendants the same power, as a way to level the playing field.

Sometimes, witness subpoenas are simply matters of courtesy. Some witnesses use subpoenas like they use doctors’ notes. If they need an excuse to get out of work, school, or another obligation, and a defense lawyer is able to provide that excuse, the witness is more likely to appear and give favorable testimony.

Legal Representation

All these important rights are nothing but ink on paper unless a knowledgeable lawyer represents the defendant. We have repeatedly mentioned that some police and prosecutors have been found to trample Constitutional rights given half a chance. A defense lawyer prevents that from happening.

People who cannot afford lawyers are entitled to a court-appointed lawyer or a public defender. However, there can be a difference between “cannot afford” an attorney and “do not want to pay for” an attorney.

Reasonable Bail

All these Constitutional rights are big. The three criminal defense rights in the Eighth Amendment might be the biggest ones.

We have said it before and we will say it again. Pretrial detention essentially destroys any chance for a successful resolution. Defendants who are behind bars are in no position to wait while their lawyers investigate their cases and negotiate with prosecutors. They’re certainly in no position to wait for a trial date. Instead, they must usually take the state’s first plea offer. Generally, the first offer is the worst one.

Montgomery County bail bonds with Fizer Bonding Company do not issue surety bonds solely to make money. They issue surety bonds 24/7 to get people out of jail quickly. Unlike cash bail, surety bonds are very affordable,  typically costing only 10% of the bond amount. And, unlike pretrial release bonds, pretty much all defendants qualify for surety bonds.

There’s more. A good lawyer is probably the best partner for a criminal defendant. A good bail bond agent is the most important first person to call if you end up in jail. At Fizer Bonding Company, we help good people through very difficult periods of their lives and “get their tail outta jail”.

Reasonable Fines

Fines should be designed to punish misconduct and encourage good conduct. They are not money-making vehicles for state or federal governments. Additionally, the fine should be proportionate with the defendant’s income. A $1,000 fine is a lot of money to you and me but almost nothing to Jeff Bezos.

This Eighth Amendment rule also applies to indirect fines. Forfeiture proceedings are part of many crimes, especially drug crimes. If authorities suspect that an asset is tied to dirty money, they do not need much evidence to seize it, since forfeiture is technically a civil proceeding. Many advocates have urged law enforcement agencies to curtail these “policing for profit” policies. 

Sometimes, all these rights interact with each other. The Eighth Amendment’s unreasonable fine rule often affects the Sixth Amendment’s right to counsel. Specifically, the forfeiture cannot be so large that the defendant is unable to hire the attorney of his/her choice.

Reasonable Punishment

The “cruel and unusual punishment” rule is often associated with the death penalty, which is certainly the cruelest punishment of all. But this requirement also applies to all other criminal penalties.

Usually, the punishment must fit the crime. That’s the primary reason crimes are divided into misdemeanors and felonies.

The Eighth Amendment also prohibits unusual punishment. The “whiskey plates” in neighboring Georgia are a possible example. These special license plates, which people convicted of DUI must put on their vehicles, are partially designed to publicly humiliate the defendant. As far as we know, no one has ever challenged this requirement on Eighth Amendment grounds. But that would be an interesting case.

To learn more about the bail bonding process, contact the Clarksville, TN bail bonds professionals at Fizer Bonding Company. For more information see our Areas Served. Fizer Bonding Company is a proud member of the Tennessee Association of Professional Bail Agents. 

“We’ll get your tail outta jail!”

Fizer Bonding Company in Montgomery County Tennessee

(931) 449-9351

Fizer Bonding Company in Robertson County Tennessee

(615) 667-1109

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