CRIMINAL DEFENDANT'S RIGHTS

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Criminal defendants have several constitutional rights. Perhaps the most essential protection is the requirement that the prosecution prove guilt beyond a reasonable doubt. But defendants have other rights, too, including the rights to:

• remain silent

• confront witnesses

• have a public trial

• have a jury trial

• have a speedy trial

• be represented by an attorney

• receive adequate representation

• not be tried twice for the same offense ("double jeopardy").

Here we explore some of the other hallmarks of basic criminal procedure. (For more, see What does the Bill of Rights do?)

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 cannot be forced to speak. If the defendant chooses to remain silent, the prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify. A civil defendant may, however, be forced to testify as a witness in a civil case. (For information on the right to remain silent outside the trial context, see The Privilege Against Self-Incrimination.)

Right to Confront Witnesses

The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. This gives defendants 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 forbids prosecutors from proving a defendant's guilt with oral or written hearsay statements from non-testifying witnesses, unless a judge concludes that the hearsay is non-testimonial. In general, statements made during ongoing emergencies (such as a call to a 911 operator reporting a crime in progress) are not testimonial. On the other hand, statements made to police officers seeking information about a past crime are testimonial. (See In Child Abuse Case, Supreme Court Narrows Right to Confront Witnesses.)

Special Confrontation Rules for Child Sexual Assault Cases

In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children were afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges—in certain situations—to allow children to testify via closed-circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying, and can cross-examine the child.

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 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 in order to prevent a witness from influencing the subsequent testimony of another. (For further information on trial publicity, see Are Criminal Trials Always Public?)

Right to a Jury Trial

The Sixth Amendment gives a person accused of a crime the right to be tried by a jury, except for petty offenses carrying a sentence of six months or less of jail time. This right has traditionally been interpreted to mean a 12-person jury. However, a jury can constitutionally consist of as few as six persons, but defendants tried by six-person juries can be convicted only if the jury is unanimous in favor of guilt. (For more information, see The Right to Trial by Jury.)

In most cases, a unanimous verdict is required to convict a defendant. 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 a defendant on a vote of ten to two. The U.S. Supreme Court has upheld state law providing for less-than-unanimous verdicts by 12-person juries in non-death penalty cases.

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 "peremptory challenges") may not be based on the juror's personal characteristics such as race, sex, religion, or national origin. (See Jury Selection.)

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 (harmed) 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. (For more, see The Right to a Speedy Trial.)

Right to Be Represented by an Attorney

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." If a defendant cannot afford an attorney (is "indigent"), a judge must appoint an attorney at government expense, but only if the defendant might be imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is possible. Otherwise, the judge would be locked into giving an unrepresented defendant a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.

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—that is, to have a lawyer who does a reasonably good job at defending the defendant. Defendants are entitled to adequate representation not only at trial, but also when it comes to plea bargains.

However, adequate representation is by no means perfect representation. Here are examples of claims that defendants have made to get their guilty verdicts thrown out but that appellate courts have rejected. (Note that the rulings depend on the particular facts at hand, meaning that these kinds of claims might, under different circumstances, actually establish ineffective assistance of counsel.)

• The attorney failed to call favorable witnesses at trial.

• The lawyer didn't object to the judge's mistaken instructions to jurors concerning the burden of proof.

• The lawyer repeatedly advised the defendant, who claimed innocence, to plead guilty.

• The attorney represented 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 reversed guilty verdicts where:

• The attorney put a law-student intern in charge of the defense and left the courtroom while the case was going on.

• During closing arguments, the attorney acknowledged 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), the attorney failed to challenge two potential jurors who said they would be bothered by the defendant's failure to testify.

Right Not to Be Placed in Double Jeopardy

Among the clauses of the Fifth Amendment is this well-known provision: "[N]or 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 being put on trial more than once for the same offense. (For much more on double jeopardy, including what it means for sentencing, see The Prohibition Against Double Jeopardy.)

One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different sovereigns. 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 more than one criminal prosecution growing out of the same conduct. So, for example, a defendant can be brought once to criminal court (by the government) and once to civil court (by someone who's been harmed) for the same offense.

Get Help

For a comprehensive understanding of the law, including how it may differ somewhat from this article in Montana, talk to an experienced criminal defense lawyer. Criminal trials are tremendously complex. But even a defendant who doesn't plan on going to trial should rely on a lawyer.

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