The Skill To Defend You

Protect Yourself By Understanding Your Constitutional Rights

The State must prove its case by a presentation of evidence that convinces the jury that you are guilty “Beyond a Reasonable Doubt.”

You can be arrested upon a mere showing of ‘probable cause,’ and have to post bond, hire an attorney and march through the various stages of a criminal legal proceeding. However, the evidence necessary to convict you of a crime is the highest burden of proof that the law can impose upon a party. It is proof ‘beyond a reasonable doubt.’

You are presumed to be “Not Guilty.”

‘Not Guilty’ and innocent are not the same. The space between innocent and guilty is NOT GUILTY. ‘Not Guilty’ simply means that your guilt was not proven beyond a reasonable doubt. You may also be innocent, but not necessarily so. Your lawyer’s job is to defend the case competently, ethically and professionally. This does not mean that he has to believe that you are ‘innocent,’ although he may very well believe that too. Your lawyer must endeavor to show that there is reasonable doubt in your case. He can do that by attacking the state’s presentation of evidence, sometimes in addition to having you testify and other times choosing to have you remain silent.

You have a right to a trial by Jury.

Studies indicate that judges convict at least 20% more often than juries. Juries are not calloused or insensitive to ‘reasonable doubt’ Unlike judges, juries have no favorite attorney to reward, nor do they kowtow to the prosecution. Unlike judges, juries are not convinced that everyone is guilty.

After a difficult trial several years ago in a small county surrounding my own county of practice, where the jury was kind enough to return a ‘not guilty’ verdict for my client, the judge and his staff were heard bemoaning the jury’s verdict with comments like “we’ lost one!” I guess in that county ‘we’ is the prosecution and the judge, teammates against the defendant. There is simply no substitute for a jury trial when a genuine issue of fact exists. Do not give up your jury trial right lightly.

You have the right to remain silent.

You do not have to make comments, give statements or even testify in our criminal justice system. Often, the most misunderstood issue in a criminal case is the police officer’s failure to advise you of your Miranda rights. From television, most people equate this advisement with a proper arrest. However, as a matter of law, Miranda advisements apply only to in custodial interrogations, that is, statements or admissions that a police officer is seeking from you as he asks you questions in a ‘custodial’ environment. Therefore, the simple failure to advise you of your rights may not mean anything.

However, the failure to properly give you your Miranda warning with regard to a police-initiated interview to obtain incriminating information from you, may result in the suppression of any confession, statement or answers that you provided. Be smart. If interviewed, ask to speak with Sam Shapiro Law Office BEFORE answering questions.

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You have the Constitutional Right to be free from Unreasonable Search & Seizure.

When it comes to stopping your car, stopping you, searching you, searching your car, searching your home or snooping by the police, you have important constitutional rights that protect you. For these rights to apply however, they must be asserted by you! If you fail to assert your rights, you may waive them.

As a general rule, any search without a warrant is invalid unless that search falls into an exception to the warrant requirement. Exceptions can include:

1. Consent Searches – Never consent or agree to a police search.

2. Consensual Interaction – You may walk away from an officer if he has no basis for approaching you.

3. Knock and Talk – A dangerous derivation of the consent search. The officer simply knocks on your door and attempts to look in your home, smell your home, or get you to invite him into your home so that he can snoop. Do not answer the door and do not allow the officer to enter your home without a warrant.

4. Weapons Searches – An officer must have an articulable specific belief that a weapon may exist within an area where you could reach it and harm him.

5. Search Incident to Arrest – A policeman may search you incident to his arrest of you.

6. Open Fields or Plain View – An officer may seize or search an area where he observes contraband or evidence of criminal activity in plain view.

Your lawyer must challenge searches that result in incriminating evidence. He must be familiar with state and federal constitutional protections to properly preserve your rights and defend your case.

You have the right to appeal a final judgment against you.

After trial, or, after some evidentiary hearings, an appeal is appropriate for one of many reasons. Typical appeals involve:

1. A challenge to the sufficiency of the evidence presented to the judge or jury that led to the guilty verdict.

2. A challenge to the effectiveness of your trial lawyer.

3. A legal error or prejudicial ruling made by the court as to a matter of evidence.

4. Any other matter that violates the procedures of trial that protect fairness, due process and criminal procedure.

Appeals are expensive, time-consuming endeavors. Ask your attorney if he has handled appeals in the past? Has he ever won an appeal? Have any of his appellate cases been published? Where can they be found?

You have the right to confront and cross-examine witnesses.

I am proud to practice in Indiana where there is a constitutional right to confront, that is, to see, to hear and to question a witness who testifies against you. This confrontation right allows your attorney to cross-examine an adverse witness to expose any bias, lack of credibility, mistakes or just plain lies that may be used against you.

You have the right to the assistance of an attorney.

I would intentionally emphasize this right because your choice of counsel is always crucial to the competence, fairness and professionalism of your defense. A good lawyer cannot guarantee a win but he certainly improves your odds of winning.

Trial is a performance art. Your chance of winning a trial or even obtaining a plea bargain that you feel is favorable cannot be trusted to the inexperienced, the incompetent, the lazy or the unprofessional attorney. Always ask your prospective lawyer if he has won a jury trial or jury trials in the past.

Do not be afraid to request some kind of track record. How long has your lawyer been in practice? Is he a member of the National Association of Criminal Defense Lawyers, the Indiana Association of Criminal Defense Lawyers or the National College for DUI Defense? Has he been rated by the Martindale Hubbell lawyer rating organization, what is the rating? Does your lawyer practice in many areas or does he limit his practice to criminal law?