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Know Your Rights

If you've been questioned by the police or have already been arrested, you need to understand your rights and work with an attorney to assert them at each and every stage of the criminal proceeding. Your freedom and your future are too important for you not to have an experienced lawyer on your side.

When being investigated or accused of a crime in Oregon, people have constitutional rights under both the United States Constitution and the Oregon Constitution. Some of these rights include:

1. The Right To Remain Silent.

Under the Fifth Amendment of the U.S. Constitution, and Article I, Section 12 of the Oregon Constitution, you have the right to remain silent and not incriminate yourself. You do not have to answer any questions asked by law enforcement officers, and you have the right to refuse to provide information that may be used against you in court.

Many people speak to the police without an attorney at their side and live to regret it. Seek out the advice of an experienced criminal defense attorney prior to agreeing to meet with or speak to the police.

2. The Right to Know your Rights during "Custodial Questioning."

Otherwise known as your "Miranda" rights, if you are being questioned while in police custody, you have the right to be told what your rights are prior to answering any questions. In Oregon, custodial interrogation refers to questioning by law enforcement officers while someone is in custody or under arrest. Custodial interrogation occurs when a person is not free to leave and is being questioned by the police in a setting such as a police station or jail.

The Oregon Supreme Court has defined custodial interrogation as any questioning that is likely to elicit an incriminating response and is conducted in a setting where a reasonable person would believe they are not free to leave. A person may be considered in custody even if they are not handcuffed or physically restrained, as long as a reasonable person would not feel free to terminate the questioning and leave.

When an individual is subject to custodial interrogation, law enforcement officers are required to provide the Miranda warnings, which include informing the person of their right to remain silent, the right to an attorney, and that anything they say can and will be used against them in court. If these warnings are not provided, any statements made by the individual during custodial interrogation may be inadmissible in court.

It is important to note that even if an individual is not under arrest or in custody, the atmosphere in which they are questioned may still qualify as custodial questioning. It's important to consult with an experienced attorney to determine whether the police violated someone’s rights or they acted properly.

3. The Right To Be Free From Unlawful Searches And Seizures.

The Fourth Amendment of the U.S. Constitution, and Article I, Section 9 of the Oregon Constitution, protects you from unreasonable searches and seizures by law enforcement officers. This means that officers must have a warrant or probable cause to search a person's property or seize their possessions.

"Searches and seizures" refer to police officers stopping you on the street, pulling you over in a car or arresting you or searching your home, car or person. You have the right to refuse to consent to a warrantless search of your person or property, including your home and car, and you have the right to walk away unless you are under arrest. Evidence found to be illegally obtained may be thrown out by a court. If you are not sure if you are under arrest or being detained, simply ask "Am I free to leave?" and if the answer is "yes" then walk away.

4. The Right To An Attorney.

Individuals have the right to have an attorney present during any questioning or interrogation. This right is protected by the Sixth Amendment of the U.S. Constitution, and Article I, Section 11 of the Oregon Constitution. If an individual cannot afford an attorney, one will be provided to them at no cost.

You have the right to have an attorney at your side during all critical stages of a criminal proceeding. This includes any questioning done prior to being arrested or charged with a crime. If you can't afford an attorney, the constitution guarantees that you have the right to an attorney appointed by the court to represent you after you've been charged with a crime. It's important however to obtain the services of an attorney way before you are actually charged!

5. The Right To Due Process.

Under the Fourteenth Amendment of the U.S. Constitution, and Article I, Section 10 of the Oregon Constitution, individuals have the right to due process of law. This means that they are entitled to fair treatment during the criminal justice process, including the right to a fair trial and the right to confront their accusers.

6. The Right To A Speedy Trial.

Under the Sixth Amendment of the U.S. Constitution, and Article I, Section 10 of the Oregon Constitution, individuals have the right to a speedy trial. This means that they have the right to be tried within a reasonable amount of time after being charged with a crime. In Oregon, this typically means a trial within 60 days of being incarcerated. If you are out of custody (not in jail) the timeline is significantly longer.

Please note that there are many cases that are so serious that it is next to impossible to prepare and ready to try at the 60 day deadline. Clients are often asked to waive their right to a speedy trial to give their lawyer and their investigator time to adequately investigate and prepare for trial.

7. The Right to the Presumption of Innocence.

Any person charged with a crime is presumed innocent until a court or jury finds them guilty beyond a reasonable doubt. Jury members are specifically told that they cannot assume you are guilty just because you have been accused of a crime or choose not to testify. It is the District Attorney’s burden to prove a person’s guilt beyond a reasonable doubt.

8. The Right to know the Evidence Against You.

You have the right to know what evidence the police have gathered against you to show your involvement in the crime. This could include police reports, witness statements, lab reports, medical records, cellular telephone records, body cam footage and physical evidence. The State is obligated to provide all evidence they have gathered against you even if it is favorable to your case. Your attorney will request copies of all documents and access to all evidence in order to prepare your case for trial or a negotiated plea.

9. The Right to Plead Not Guilty and Proceed to Trial or Change your Plea to Guilty or No Contest.

In the vast majority of cases, people will entry a “not guilty” plea at their first court appearance. This is entirely normal and moves the criminal court process forward so they can get access to police reports and other evidence against them. After analyzing the evidence and strategizing with their attorney, a person may choose to proceed to trial or enter a guilty plea to some or all of the charges.

10. The Right to a Trial by Judge (called a bench trial) or Jury.

Every year, thousands of people from the community receive a summons for “jury duty.” This is a time for people to give back to their community and be a real part of the criminal justice system by hearing cases and deciding a person’s guilt or innocence.

If a person demands a trial and decides to have a judge hear their case, the judge will be responsible for determining if the State has met their burden of proof.

When a person demands a jury trial, jury members will hear the evidence against you and decide whether the State has met their burden of proof and proved the case against you beyond a reasonable doubt. For felonies in Oregon, you will have a 12 person jury. For a misdemeanor, a 6-person trial.

11. The Right To Confront And Cross-Examine Witnesses Against You.

If you proceed to trial, you have the right to confront and cross-exam witnesses used by the State to prove your guilt. This usually comes in the form of your attorney asking questions of the witness to ferret out details and information that helps your case.

12. The Right To Subpoena Witnesses And Evidence.

You have the right to present evidence to support your innocence. An experienced attorney can use the subpoena power of the court to compel a record keeper or a witness's attendance at your trial even if they are less than cooperative.

13. The Right to Remain Silent at Trial or Testify On Your Own Behalf.

You have the right to call yourself as a witness at trial or to not testify. If you choose not to testify, jury members will be specifically told that they cannot assume anything about your guilt if you choose not to testify.

This decision is by far the most important decision you will make in your case if you decide to go to trial. Your attorney will advise you of the pros and cons of testifying and you then get to decide whether a jury will hear from you. For some clients, telling their side of the story is absolutely necessary in order to mount a proper defense. For others, it might not be as advisable to do so.

Intelligent, Resourceful, and Skilled Legal Counsel: 503-626-1808

It is important to understand and exercise these rights if you are being investigated for a criminal act in Oregon. If you feel that your rights have been violated, you should consult with an experienced criminal defense attorney who can advise you of your legal options.

I am attorney Shelley L. Fuller, and I am committed to helping you understand your legal rights and provide you with honest, ethical, and determined criminal defense legal services. To learn more about your rights and to schedule a consultation, please call my office today at 503-626-1808.

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