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. It is only after a criminal defendant has
been arrested that he has a better understanding of the protection of
his constitutional rights under the Fourth, Fifth and Sixth Amendments
to the United States Constitution. After criminal charges are filed, the
defendant has the following rights:
1. The right to effective assistance of counsel;
2. The right to plead not guilty;
3. The right to a jury trial;
4. The right to testify and present evidence at trial;
5. The right to not testify or present evidence at trial; and
6. The right to appeal.
Often these cases are discussed during the initial client interview and
then throughout the case.
In a criminal case, the burden is on the government to prove the charges
beyond a reasonable doubt. Sometimes individuals who are guilty of crimes
are not guilty of the specific crimes charged. For this reason the defendant
has the right to plead not guilty and to learn the nature of the government’s
allegations before deciding whether to go to trial or to enter a plea
of guilty at a later date.
In all felony cases and most misdemeanor cases, the defendant has a right
to trial by jury. In the State of Nebraska, 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.
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.
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 100s 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.
Unfortunately, sometimes jurors, even when instructed to do so, do not
recognize or understand this principle.
The defendant himself has the right to testify and the right not to testify.
If the defendant testifies, he may be cross-examined and, if he provided
statements to law enforcement during an investigation or interrogation,
statements may be used to impeach him and make him look like a liar. However,
if the defendant does not testify, he will never be given the opportunity
to tell his 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 him. The defendant must discuss with his attorney whether he wishes
to testify and the attorney will advise the defendant on whether he believes
he should testify, but ultimately the decision of whether to testify belongs
to the criminal defendant.
If the criminal defendant loses the case, he has 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
A criminal defendant in any case has rights. Sometimes the criminal defendant
will follow the attorney’s advice. Other times the criminal defendant
will not follow the attorney’s advice often to the defendant’s peril.
It is important that the defendant understand his rights, but it is also
the defendant’s duty to communicate and be honest with his attorney
not only about the facts of the case, but his expectations. It is a criminal
defense attorney’s job to determine what strategies and tactics
he 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 his client.