Your Rights in a Criminal Case
Legal & Constitutional Rights of a Defendant in Colorado
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1. You have the right to remain silent -and you should do so at all times! There is a reason that this is the first advisement you are given...anything
you say can and WILL be used against you in a court of law. Do not try
and talk your way out of a situation or explain yourself or give your
side of the story. No matter how smart, or how innocent | in the right
you think you are, the more talking you do, the worse you make your situation.
The job of law enforcement is to prosecute you - not to understand you.
Do not fall for the line "just tell me what happened and this will
all go away". Think long term, not short term.
2. You have the right to have a lawyer present immediately: 1) upon being placed into custody, and | or 2) during any questioning
by any law enforcement officer, including the prosecutor, and | or 3)
upon the filing of criminal charges and any time after charges are filed...BUT
YOU MUST REQUEST ONE. If you do not request a lawyer, you will not be
3. When you request a lawyer, law enforcement questioning must stop immediately. Do not fall for the line "well if you want a lawyer you are just
going to have to stay in jail". They are going to keep you in jail
anyway. Think long term, not short term.
Contact The Evans Law Firm immediately at 303-578-8550!
4. If you cannot afford a lawyer, one will be appointed for you at no cost. So why would you not ask for a lawyer if you get one for free? Don't
try to do this on your own. Use a lawyer who has been to school and does
this for a living.
You have the right to bail, if the offense is bailable (most are), and the amount of bail must be
reasonable and representative of the pending charges, any prior criminal
history, local contacts, risk of flight, danger to the public, etc. The
purpose of bail is not to punish or be oppressive, it is only to ensure
your return to court.
6. You have the right to be informed about the
nature of the charges you are facing.
7. You have the right to be brought in front of a judge as quickly as possible (usually no more than 48 hours) if you are placed
| held in custody so that you can be advised about your rights and have bail set.
8. You have the right to demand and receive a preliminary hearing (only applies to certain charges) within a reasonable time (10 days after
your second advisement) to determine whether probable cause exists to
believe that the offense charged was committed by the defendant. The preliminary
hearing must be set within 35 days after your second advisement | filing
of the charges | request for preliminary hearing.
9. You have the right to a speedy trial (within 6 months after you plead "Not Guilty" at arraignment).
10. You have the right to trial by a fair and impartial jury, made up of a representative sample of the population in the jurisdiction
where you are charged. The number of jurors (6 or 12) depends on the charges
you are facing. You can also waive a jury and only have a judge.
11. You have the right to subpoena witnesses and compel (force) their attendance at court to testify. You have the
right to cross examine and confront any witnesses who will testify against
you at trial. You also have the right to compel full contact information
and criminal histories of any witness involved in the case from the prosecutor.
12. You have the right to have notice of any and all evidence that will be presented against you at trial, especially exculpatory (helpful)
evidence and the content of any of your own statements that the prosecutor
intends to use at trial.
13. You are presumed innocent. At trial, the prosecutor has the burden of proof - you do not.
14. You have the right to require the prosecutor to prove each and every element of the charges at trial beyond a reasonable doubt.
Don't get too excited about this presumption. For all practical purposes,
it is actually the other way around. Call us so we can explain this to you.
15. You are never required to testify at your own trial if you do not want to, and your decision not to do so
cannot be held against you by the judge or the jury. Conversely, you have
the right to testify at your own trial in your defense if you want to,
just know that you are subject to being cross examined by the prosecutor
and being asked questions about any prior criminal record.
16. You have the right to appeal any conviction by a judge or a jury to a higher court.
17. You cannot be tried twice for the same offense against the same parties after you have been found
"Not Guilty" by a judge or a jury. This is commonly known as
18. Any plea you make must be voluntary and not the result of undue influence or coercion. Before a plea you must
understand all of your rights, that you are giving up all of your rights,
the nature of the charge and the elements of the offense to which you
are pleading, the possible punishments that could be given by the judge
(the judge has sole discretion on what punishment to prescribe).
Read an article about the pros and cons of pleas or deferred judgment pleas
by The Evans Firm.
Amendment IV Unreasonable Search and Seizure
This right has been incorporated against the states, along with the remedy
of exclusion of unlawfully seized evidence, by the Supreme Court's
decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled
Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that
while the Fourth Amendment applied to the states (meaning that they were
bound not to engage in unreasonable searches and seizures), the exclusionary
rule did not (meaning that they were free to fashion other remedies for
criminal defendants whose possessions had been illegally seized by the
police in violation of the Fourth Amendment).
The various warrant requirements have been incorporated against the states.
See Aguilar v. Texas, 378 U.S. 108 (1964). The standards for judging whether
a search or seizure undertaken without a warrant was "unreasonable"
also have been incorporated against the states. See Ker v. California,
374 U.S. 23 (1963). Amendment V Right to indictment by a grand jury. This
right has been held not to be incorporated against the states. See Hurtado
v. California, 110 U.S. 516 (1884). Because many state constitutions provide
for indictment by grand jury, at least in the case of serious crimes,
it is unlikely that the Supreme Court will revisit the decision not to
incorporate this right against the states.
Protection against Double Jeopardy
This right has been incorporated against the states. See Benton v. Maryland,
395 U.S. 784 (1969). Constitutional privilege against self-incrimination.
This right has been incorporated against the states. See Malloy v. Hogan,
378 U.S. 1 (1964).
A note about the Miranda Warnings
The text of the Fifth Amendment
does not require that the police, before interrogating a suspect whom they
have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary
prophylactic device, and thus required by the Fifth Amendment by police
who interrogate any criminal suspect in custody, regardless of whether
he or she is ultimately prosecuted in state or federal court.
Protection against taking of private property without just compensation.
This right has been incorporated against the states. See Chicago, Burlington
& Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
Amendment VI Right to a Speedy Trial
This right has been incorporated against the states. See Klopfer v. North
Carolina, 386 U.S. 213 (1967). Right to a public trial. This right has
been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).
Right to Trial by Impartial Jury
This right has been incorporated against the states. See Duncan v. Louisiana,
391 U.S. 145 (1968). However, the size of the jury, as well as the requirement
that it unanimously reach its verdict, vary between federal and state
courts. Even so, the Supreme Court has ruled that a jury in a criminal
case may have as few as six members. If there are twelve, only nine jurors
need agree on a verdict. Furthermore, there is no right to a jury trial
in juvenile delinquency proceedings held in state court. See McKeiver
v. Pennsylvania, 403 U.S. 528 (1971).
Right to Notice of Accusations
This right has been incorporated against the states. See In re Oliver,
333 U.S. 257 (1948).
Right to Confront Adverse Witnesses
This right has been incorporated against the states. See Pointer v. Texas,
380 U.S. 400 (1965).
Right to Compulsory Process (subpoenas) to obtain witness testimony
This right has been incorporated against the states. See Washington v.
Texas, 388 U.S. 14 (1967).
Right to Assistance of Counsel
This right has been incorporated against the states. See Gideon v. Wainwright,
372 U.S. 335 (1963). In subsequent decisions, the Court extended the right
to counsel to any case in which a jail sentence is imposed.
Amendment VIII Protections against "excessive" bail and "excessive" fines
These provisions have not been held to be incorporated against the states.
In Murphy v. Hunt, 455 U.S. 478 (1982), the Court held that a pretrial
detainee's suit under 42 U.S.C. § 1983 that he was being unconstitutionally
denied bail, in violation of the Eighth Amendment, was rendered moot when
he was convicted in a Nebraska court. The conclusion that the § 1983
case had been moot from the moment of the defendant's conviction allowed
the Court to avoid deciding whether the Eighth Amendment protection against
"excessive" bail applied to prosecutions in state court. In
any event, all state constitutions provide for a similar right, and so
the most frequent mechanism for challenging the amount of bail, or the
complete denial of bail, remains state law. Protection against "cruel
and unusual punishments" This provision has been incorporated against
the states. See Robinson v. California, 370 U.S. 660 (1962). This holding
has led the Court to suggest, in dicta, that the excessive bail and excessive
fines protections have also been incorporated. See Baze v. Rees, 128 S.
Ct. 1520, 1529 (2008).
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