Most people who have never been charged with a crime only understand their constitutional rights after they have been interrogated or their property searched by law enforcement. After criminal charges are filed, the defendant has the following rights under the Fourth, Fifth and Sixth Amendments of the United States Constitution:
- The right to effective assistance of counsel;
- The right to plead not guilty;
- The right to a jury trial;
- The right to testify and present evidence at trial;
- The right to not testify or present evidence at trial; and
- The right to appeal.
Often these cases are discussed during the initial client interview and then throughout the case.
Right to Trial
In all felony cases and most misdemeanor cases, the defendant has a right to trial by jury.
The Nebraska State Constitution states that a defendant has the right to have a felony case tried in front of 12 jurors or to waive that right and try the case in front of a judge without a jury. In federal court, both the prosecution and the defendant must agree to waive jury trial. In most cases, the defendant’s best chance of being acquitted is at a jury trial. However, every now and then there are cases where the important issues are legal in nature rather than factual and, due to the circumstances surrounding the event, it makes sense to waive jury and have a bench trial. Regardless, the decision of whether to have a jury trial is a decision the client makes. The client should consult with his attorney prior to making this decision, but ultimately it is the client’s decision.
Rights Regarding Plea Agreements
Prior to trial, prosecutors will often offer plea agreements. The decision of whether to accept, decline or make a counter offer to a plea agreement belongs to the client. Once again, the decision should be made with the advice of a criminal defense attorney. However, the decision to accept or decline a plea agreement resides with the defendant and not the attorney.
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
In the event the case goes to trial, the government bears the burden of proving the case beyond a reasonable doubt. The defendant may put on evidence or decide to not put on any evidence. Many times the most effective trial strategy is for the defendant not to call any witnesses, but to argue that the government bears the burden of proving the case beyond a reasonable doubt and failed to meet that burden.
There are several reasons for employing this strategy especially since most law enforcement officers are professional witnesses who have often testified hundreds of times and will often come off as much stronger witnesses than the defense witnesses. Furthermore, prosecution almost always puts on more evidence than the defense and, while the government bears the burden of proving the case beyond a reasonable doubt, there is always the fear that the jurors will simply decide who put on more evidence. The law does not care who put on more witnesses, but rather whether the government has proven the case beyond a reasonable doubt.
Right to Testify
The defendant has the right to testify and the right not to testify. If the defendant testifies, they may be cross-examined and, if he provided statements to law enforcement during an investigation or interrogation, statements may be used to impeach them. However, if the defendant does not testify, they will never be given the opportunity to tell their story.
If a defendant does not testify, the judge will instruct the jury that the fact that the defendant did not testify cannot be held against them. The defendant must discuss with their attorney whether they wish to testify and the attorney will advise, but ultimately the decision of whether to testify belongs to the criminal defendant.
Right to Appeal
If the criminal defendant loses the case, they have the right to appeal. The defense attorney may advise the client on the likelihood of success of the appeal, but the ultimate decision as to whether to appeal is up to the client.
It is important that the defendant understand their rights, but it is also the defendant’s duty to communicate and be honest with their attorney not only about the facts of the case, but their expectations. It is a criminal defense attorney’s job to determine what strategies and tactics they will use, but the criminal defendant must assist the attorney with providing honest information about the case so that the defense attorney can obtain the best result for the client.
If you or someone you know has been charged with a crime, contact the relentless criminal defense attorneys at Berry Law.