Each of the 50 states is empowered to create rights in excess of those already in place and guaranteed by the constitution, and which the United States Supreme Court does not recognize.

Where to these rights come from, anyway?

As the name implies, constitutional rights are derived from the United States Constitution and all of its amendments. However, many rights afforded to criminal defendants, or to citizens, in general, are not expressly stated anywhere in the Constitution but have been made into law by courts of either the state of Washington or by federal courts. Specifically, case law has defined these rights and their practical implication in real life situations.

In general, two types of law exist: statutes and case law. Statutes are simply laws expressed in textual terms, sometimes referred to as the “black letter of the law.” Case law, also known as Stare Decisis, is the ruling of a court with regard to the application of constitutional standards (or any other statutes) when met by real world circumstances. To illustrate case law, consider the question of whether a woman can legally abort a pregnancy. Since the authors of the Constitution did not expressly discuss this question, the United States Supreme Court was charged with deciding whether the constitution granted this right, or whether the governments of each state were free to outlaw this practice. In one of the most famous cases of all time, Roe v Wade 410 U.S. 113 (1973), it was decided that the Constitution did, in fact, guarantee this right, and this decision became case law.

In another landmark, yet not so publically-known case, Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court decided that a criminal defendant being charged with a felony is entitled to legal counsel, and that the government must provide counsel if the defendant is financially unable to provide legal counsel for himself. The Constitution of the state of Washington further provides that a defendant is entitled to legal counsel when facing any charge, including misdemeanors if a conviction carries with it the possibility of incarceration.

Washington law offers greater protection to criminal defendants than the Constitution

While the United States Supreme Court held that police do not have to advise a criminal defendant that an attorney wants to see him in Moran v Burbine 475 U.S 412 (1986), Washington state law rejects this and requires that criminal defendants be advised that attorneys appointed for them (hired by third parties, such as family members, for example) are available to be seen.

Assert Your Rights

The constitution of the state of Washington requires that a criminal defendant be represented by legal counsel at all critical stages of criminal proceedings. These include immediately after an arrest, arraignments, preliminary bail hearings, post-indictment identification procedures including line-ups, probation revocation hearings, and sentencing hearings. Even if, and indeed especially if critical stages of criminal proceedings took place without proper representation by legal counsel, it is not too late to appeal evidence improperly gathered and to have it declared inadmissible in court. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.