The U.S. Constitution is the supreme law of the United States. It serves to protect individual rights and is fundamental to ensuring liberty and justice for all. At Rachel Kaufman Law, we carefully analyze all government action during the criminal case process to determine whether a client’s constitutional rights were violated at any point. If we conclude there is even a possibility that our client’s constitutional rights were violated, we advocate for a dismissal of our client’s criminal charges in court.  This is because constitutional violations often warrant dismissal of charges.

Here is a brief overview of some of your individual rights, which may be violated during a police encounter:

4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

4th Amendment Principles

  • Warrantless searches and seizures are per se unconstitutional unless they fall within an exception recognized by courts such as “exigent circumstances,” searches incident to an arrest, consent to searches, plain view.
  • Warrants to search and seize must be judicially sanctioned and limited in scope. Warrants must be based on probable cause, which is specific information (often) sworn to by a law enforcement officer that supports the warrant to search or arrest.
  • Exclusionary Rule: Evidence illegally obtained by law enforcement cannot be introduced at trial unless the State can demonstrate "inevitable discovery" or one of the other exception to this rule that stems from our 4th amendment right.

5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

5th Amendment Principles

  • Self-Incrimination is the act of exposing oneself (generally, by making a statement) to an accusation or charge of crime or to involve oneself or another person in a criminal prosecution or the danger thereof.
  • A "Miranda" warning is required only when a person has been taken into custody (i.e. is not free to leave) and is being interrogated, and the results of this interrogation are to be used in court. An officer does not have to read a person their Miranda rights if they will not be questioning them any further after their arrest. This warning tells the detainee that they have the right to be silent, the right to have counsel present during questioning, and warns them that whatever they say can and will be used against them.
  • Double Jeopardy: The four essential protections derived from the 5th amendment relating to the concept of "double jeopardy" are 1) retrial after an acquittal 2) retrial after a conviction 3) retrial after certain mistrials and 4) multiple punishment. Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally.
  • Due Process: Applicable to the States through the 14th amendment,  due process rights provide the following guarantees in almost all criminal and civil litigation contexts:
    • An unbiased tribunal
    • Notice of the proposed action and grounds asserted for it
    • Opportunity to present why the proposed action should not be taken
    • The right to present evidence, including the right to call witnesses.
    • The right to know opposing evidence
    • The right to cross-examine adverse witnesses
    • A decision based on exclusively on the evidence presented
    • Requirement that the tribunal prepare a record of evidence presented
    • Requirement that the tribunal prepare written findings of fact and reasons for its decision

6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be confronted with the witnesses against him; to have compulsory witnesses in his favor; and to have Assistance of Counsel for his defense."

6th Amendment Principles

  • The right to assistance of counsel
  • The right to compel witnesses to appear in court
  • The right to confront witnesses
  • The right to be informed of criminal charges
  • The right to a trial by an impartial jury
  • The right to a speedy and public trial 

8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

8th amendment principles:

  • Excessive Bail + Fines: In theory, the purpose of this right is to avoid pretrial incarceration so long as an arrestee's presence in court can be secured. It was not designed to serve as a form of pretrial punishment, however, in practice, it sometimes seems that way. To request a bond reduction or modification, contact us at 404-615-7588.
  • Cruel and Unusual Punishment: No universal definition exists, but any punishment that is clearly inhumane or that violates basic human dignity may be deemed "cruel and unusual.