Rights from Arrest to Bail to Jail

“It is of the essence of justice not to decide against anyone on grounds which are not charged against him, and as to which he has not had an opportunity of offering explanations or calling evidence.”

– Lord Blackburn, O’Rorke v. Bolingroke (1877), L. R. 2 Ap. Ca. 834

“It is abominable to convict a man behind his back.”

– John Holt, C.J., The Queen v. Dyer (1703), 6 Mod. 41

This area undoubtedly contains the greatest number of your stated rights because if the government wishes to hold you, fine you, imprison, or even kill you, it has to jump through all these hoops before it can do so, both to ensure it always has to make its case, and that you have every opportunity to establish your innocence. For this, the most sensible order is chronological, from the crime, to your arrest, to bail, to trial, to punishment or acquittal.


First, the law against whatever you are allegedly doing has to be legitimate. If such a prohibition infringes on your rights, such as your right to speak, it is unconstitutional, and you have not really committed a crime. Furthermore, the alleged action by you has to have been illegal at the time. If for example, you were fishing in a pond when it is legal one day, and the next day it is illegal, and you stop, you cannot be punished because you did it when it was legal (ban on “ex post facto” laws). Finally, the law has to clearly state whatever the prohibited action is. If it does not, it is possibly void because of its vagueness.


When it comes to any offenses punishable by death or “otherwise infamous,” the Federal Government cannot charge you unless a grand jury determines a minimal amount of evidence exists to justify prosecuting you. Please note that this does not apply against your state government.


Once arrested, or once you are held by the police and not free to leave, you are entitled to be informed of your rights (“Miranda”). Additionally, you have the right to be notified of the nature and cause of the accusation against you. Finally, you have the “privilege of the writ of habeas corpus” or the right to be released unless the person holding you can demonstrate a legal and jurisdictional basis for holding you.


Depending on the crime you are accused of, you may have a right to bail yourself (or get bailed by another) out of jail and for a “reasonable” cost, so you will be free while your trial is pending.


During trial is when most of your rights are of use.

First, you have the right to a “speedy trial,” or a trial quick enough to ensure that factors witness’s recounts of the events would still be reliable. However, this right needs to be invoked before a trial has occurred, not after. In other words, you cannot throw out a conviction just because the trial was not speedy.

Second, you have a right to a public hearing, or a trial that can be viewed by the public.

Third, you have the right to have your guilt or innocence determined by a jury of your peers instead of a judge (“trial by jury”).

Fourth, you have a right to confront and cross-examine those who testify against you.

Fifth, you have the right to obtain witnesses in your favor.

Sixth, you have a right to effective assistance of counsel. If you cannot afford an attorney, you have the right to have one appointed for you at the government’s expense.

Seventh, you have the right not to take the stand during a trial against yourself or answer any questions that may implicate you (that is commonly referred to as “pleading the fifth” or a “right against self-incrimination.”).


Once your judgment is rendered, you have the right not to receive a “cruel and unusual” punishment. An example may include being tarred and feathered, but more seriously, an excessive jail sentence, fine, or the death penalty for a non-murder. Additionally, you have the right not to be tried again for the same crime (“Double Jeopardy”). That includes being tried again after being acquitted, regardless of any new evidence, or being tried again to add to whatever punishment you have received. A government only gets one shot at convicting and punishing you for a given act.