The Constitution ensures a full array of rights that a criminal defense lawyer must assert on his client’s behalf.
The Fourth Amendment protects individuals from arrest and search unless the police officer has what is called probable cause to believe the individual committed a crime or reasonably suspects that the individual may be involved in criminal activity. In other words, police cannot lawfully stop and search an individual based on a hunch. What constitutes probable cause or reasonable suspicion depends on the facts presented: No two police encounters resulting in arrest are exactly alike. Nonetheless, a successful challenge to an arrest based on a Fourth Amendment violation requires the judge to prevent the jury from learning about the evidence police obtained from the arrest and most often results in the dismissal of all charges.
The Fifth Amendment protects the right of a suspect in custody to not incriminate himself. Because statements by a defendant are most often the most powerful evidence against him, an individual stopped by police is best advised to exercise his right to remain silent immediately and to not even wait until the police inform him of that right. The question of whether police obtained a statement from an individual always depends on the facts of the case, and it is essential for a defense attorney to protect his client’s Fifth Amendment rights.
Confrontation Clause Issues. The Sixth Amendment protects the right of an individual to confront and cross-examine witnesses who testify against him. In other words, a police officer cannot repeat to the jury at trial a statement by an eye-witness to a particular crime because the defendant does not have the opportunity to confront the witness and challenge the accuracy of the statement. While there are some unfortunate exceptions to this right, this protection is among our most fundamental rights.
Second Amendment. Recent Second Amendment litigation has been quite contentious as the Supreme Court has established that the right to bear arms belongs to the individual. This recognition will not bring about much change in Virginia, but the District of Columbia is grappling with changes it needs to make in the way it enforces its gun laws. District of Columbia compliance with the Second Amendment has been grudging. Shortly after the Supreme Court struck down one part of the District of Columbia’s excessive gun ban, police and prosecutors in D.C. became far more aggressive in arresting, prosecuting, and maximizing the punishment for individuals whose alleged offenses involved provisions of the D.C. gun ban that the Supreme Court had not struck down. It will very likely take several years for the District of Columbia to comes fully into compliance with the Supreme Court’s views regarding the fundamental Second Amendment rights and until that time, the District of Columbia will continue to criminalize, prosecute and punish conduct considered lawful and appropriate in many other parts of our nation.