What are My Rights if I am Accused of a Crime in the United States?

Young man in jailPeople who have been formally accused (charged or “indicted”) with a crime have various rights. We cover some of them here.

What can the police or investigators do to me?

Most of the rules on police work is covered under our Guide to Police Conduct.

Will a lawyer represent me even if I can’t afford one?

Yes, for crimes that can result in jail time, if you cannot afford an attorney, the government will provide one (called a “public defender”) free of charge.1Gideon v. Wainwright 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); U.S. Const. 6th am.

Can they keep me in jail if I haven’t been formally charged with a crime?

If you are legally present in the U.S., it is illegal and unconstitutional for the government to hold you against your will for a lengthy or undetermined period of time without going through the proper criminal justice process. This is called “indefinite detention” and is a violation of the rights of “due process of law” (sometimes just called “due process”).2this would be a violation of the “habeas corpus” principle or “suspension clause” in the U.S. Constitution and the Judiciary Act of 1789, according to Immigration and Naturalization Service v. St. Cyr (2001), and Boumediene v. Bush (2008)

But the law is different for people in the country without authorization. See our Guide to the Laws about Immigration & Travel to the U.S.

What is a citizen’s arrest and is it legal?

It is legal for any person in the U.S. (whether citizen or not) to arrest or detain another person in certain circumstances. Laws vary by state, but most states allow for a citizen’s arrest if they have seen someone commit a serious crime. Other states allow a person to place someone in detention even if they didn’t see the crime committed, but has good reason to believe that the suspect did it.

For example, in California, a person may make a citizen’s arrest in any of the following situations:3California Penal Code Sec 837

  1. A “public offense” committed or attempted in one’s presence.
  2. When the person arrested has committed a felony, although not in one’s presence.
  3. When a felony has been in fact committed, and one has reasonable cause for believing the person arrested to have committed it.

Also, stores may have a right to detain a person if they suspect them of shoplifting. This is known as the shopkeeper’s privilege.

See more on this at our Guide to Victim’s Rights.

What can I do if someone unjustifiably calls the police on me but I didn’t do anything wrong?

If a private citizen calls the police on you, knowing that you did not commit any crimes, you may be able to successfully sue that person for “malicious prosecution.” This is also sometimes called “abuse of process” or “abuse of civil process” or “wrongful use of civil proceedings.”

Which states still use the death penalty? Can they execute a minor or mentally disabled person?

See our Guide to the Death Penalty in the United States.

Do I have the right to a trial?

You have the right to a trial if you are accused of a crime that could subject you to more than 6 months in jail. This right is protected by the 6th amendment.4Baldwin v New York (1970)

Can anyone claim insanity as a defense to a crime?

In most states, yes. But states are allowed to eliminate the “insanity defense“, and these state laws do NOT violate the constitution.5Kahler v Kansas (2019) At least five states have restrictions preventing the use of the insanity defense: Kansas, Alaska, Idaho, Montana and Utah.

Must a jury verdict be unanimous to convict me?

Yes.6Ramos v Louisiana (2020) Under the 6th amendment of the U.S. Constitution, if a verdict is not unanimous, you cannot be convicted of that crime.

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