Can a defendant challenge the constitutionality of the statute being accused of?

Question

If someone is accused of a crime in his state and he believes the statute he is being accused of violates one or more of his constitutional rights, say right to travel or free speech. Can the defendant raise an argument in his defense, move to dismiss, or appeal the decision under these constitutional grounds? Can he open a new case as a plaintiff against the state for enforcing unconstitutional laws?

Answer 1

There are multiple ways a defendant can challenge a constitutional law, unfortunately, this typically happens after being found guilty of said statute. The process goes as follows:

You can choose to plead guilty to move the constitutionality issue faster. To go the long route, you could have your defense attorney bring up bias claims in trial. So let's say the statute was a ten year minimum sentence for individuals protesting by blocking a road. Your attorney could bring up during trial things like, "John Doe is only guilty of caring about the environment. His cause is a beautiful thing and as a jury you have the power to decide when the state has gone too far with their enforcement of this statute by finding John Doe not guilty."

The scenario I am referencing is called jury nullification which is actually very controversial in the courts and the prosecution as well as the judge will likely object to mentions or suggestions of it. A jury's duty as per instructions is typically to see if you broke the statute. The jury's job is not to decide whether or not a statute is bad and shouldn't be enforced. However, writers, juris experts, etc. reference that when a jury decides to find someone not guilty of something that there was overwhelming evidence to support guilt, it means the laws have not changed with the times or the jury's outlook on morals. An example of this happening is a lack of guilty sentences from juries on cases that are brought to trial due to strict marijuana laws.

Another thing your attorney should do if you take it to trial is offer a "motion to dismiss on grounds of a violation of your constitutional rights due to the statute violating the First Amendment." Likely the judge would say "motion to dismiss is denied" and that the attorney can file an appeal or that "the motion to dismiss is noted for the record." What this does is it allows an attorney to make a constitutional claim on appeal.

After being found guilty/convicted, you can start the process for arguing the constitutionality of the statute. This is a very long and costly process. It begins with finding someone who will even take your case. Sometimes they need more defendants convicted of the same crime to file a case with force. The case might be struck down and you likely won't get a change in sentence regardless. There will need to be immense media pressure and political backing to get public opinion to change where individuals care and are against the statute. This as well as solid legal precedence might allow for justices of whatever supreme court (state, federal, military) to sway them to strike down part of the statute, a bad practice amongst law enforcement closely tied to the statute or the statute in entirety and maybe go as far to suggest other legislation for legislative branches to work on constructing.

Short answer: you have to be found guilty by trial or plea to argue a constitutionality issue with the law that is being imposed on you. The part about being found guilty is the actual violation of rights and it has to happen before a court can take on a statute's constitutionality.