Key Aspects of Modern Criminal Procedure: Defendant's Rights
From the Nolo.com Criminal Law CenterA quick tour of the ways in which the U.S. Constitution attempts to ensure fair treatment for criminal defendants.
There are two fundamental aspects of the U.S. criminal justice system -- the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt. But criminal defendants have other rights too. Here we explore some of the other hallmarks of basic criminal procedure.
The Defendant's Right to Remain Silent
The Fifth Amendment to the U.S. Constitution provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, the defendant has the right to "sit mute." The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.The Defendant's Right to Confront Witnesses
The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. Implicit in this right is the right to cross-examine witnesses -- that is, the right to require the witnesses to come to court, "look the defendant in the eye," and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses.
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The Defendant's Right to a Public Trial
The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom when it appears that they will coach each other.
The Defendant's Right to a Jury Trial
The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury which must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side -- but these decisions (called preremptory challenges) may not be based on the juror's personal characteristics such as race, sex, religion or national origin.The Defendant's Right to be Represented by an Attorney
The Sixth Amendment to the U.S. Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense." A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if at the conclusion of the case the defendants might be actually imprisoned for a period of more than six months. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility. Otherwise, the judge would be locked into a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.
The Defendant's Right to Adequate Representation
The U.S. Supreme court has ruled that both indigent defendants who are represented by appointed counsel and defendants who hire their own attorneys are entitled to adequate representation. However, adequate representation is by no means perfect representation. Here are examples of claims that defendants have made against their attorneys which appellate courts have ruled to not justify throwing out a guilty verdict:
- failing to call favorable witnesses at trial
- using cocaine during the time the representation took place
- failing to object to a judge's mistaken instructions to jurors concerning the burden of proof
- eliciting evidence very damaging to the defendant while cross-examining prosecution witnesses
- repeatedly advising a defendant who claimed innocence to plead guilty
- representing the defendant while being suspended from the practice of law for failure to pay state bar dues.
On the other hand, circumstances can be sufficiently shocking to justify throwing out a guilty verdict based on an attorney's incompetence. Judges have ruled that the following claims justify a reversal of a guilty verdict:
- putting a law student intern in charge of the defense and leaving the courtroom while the case was going on
- during closing arguments, acknowledging that the defendant was guilty of a lesser crime without first securing the defendant's approval of this tactic
- during voir dire (questioning of the jury), failing to challenge two potential jurors who said they would be bothered by the defendant's failure to testify.
Defendant's Right to a Speedy Trial
The Sixth Amendment gives defendants a right to a "speedy trial." However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay, and whether the delay has prejudiced the defendant's position.Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.
The Defendant's Right Not to Be Placed in Double Jeopardy
Among the several clauses of the Fifth Amendment to the U.S. Constitution is this well-known provision: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges in the same case.
One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different jurisdictions. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.
Furthermore, the double jeopardy clause forbids only successive criminal prosecutions growing out of the same conduct. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.
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