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Criminal Defendants' Rights During Trial: The Bill of Rights

Learn about the constitutional rights that protect criminal defendants.

The Bill of Rights provides certain rights to criminal defendants during trial. 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. (See Nolo's article Common Defenses to Criminal Charges.) But criminal 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. (To read the actual text of the Bill of Rights, check out Nolo's list of The Most Important Cases, Speeches, Laws, & Documents in American History.)

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 defendant may, however, be forced to testify as a witness in a civil case.)

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 to private persons or to government officials during an on-going emergency (such as a call reporting a crime-in-progress to a 911 operator) are not testimonial. On the other hand, statements made to police officers seeking information about a past crime are testimonial.

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.

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.

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. And the U.S. Supreme Court has upheld a 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.

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.

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 actually 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 a possibility. 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. For more information, see Nolo's article Criminal Defense Lawyer FAQ.

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.

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:

• the attorney failed to call favorable witnesses at trial

• the attorney failed to object to a judge's mistaken instructions to jurors concerning the burden of proof

• the attorney repeatedly advised a defendant who claimed innocence to plead guilty

• the attorney used cocaine during the time the representation took place, and

• 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 ruled that the following claims justify a reversal of a guilty verdict:

• 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, and

• 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: "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 at one time 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 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. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same offense.

For a comprehensive guide that answers your questions about every part of a criminal case, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman (Nolo). If you are looking for a criminal defense attorney, check out Nolo's trusted Lawyer Directory, to find a lawyer near you.