The Criminal Trial
What is the "right to a speedy trial"?
A defendant has a constitutional right to a speedy trial. That usually applies to people in custody and it applies to out of custody also, but a person has a right to a speedy trial. On a misdemeanor that means they have the right to a trial within 45 days. If it's a felony, they have a right to a preliminary hearing within 100 days. And then after, if they're held to answer on that charge at a preliminary hearing, they have a right to an arraignment within 14 days, and then a trial within 6 days after that. These are very specific constitutionally set time periods for speedy trials. Often within the process time is waived and people give up their speedy trial rights to try to resolve the case or give their attorneys more time to conduct interviews or get evidence.
What is the right to a trial by a "jury of my peers"?
A jury of your peers are members of your community. It does not entitle you to a jury of people that are of the same sex, the same race or the same socioeconomic status. A jury of your peers are usually provided by the voter rolls or by the driver's license rolls. The jury is made up of ten people from the community.
How is the location of my trial determined?
The location of your trial is usually determined by where the crime is committed and in what jurisdiction it's being charged. So if it's being charged with the state or county authorities, it will be charged within the county you're in. And often those are just randomly selected by what court you're closest to and what police station they file at.
Can I have the location of my trial moved?
Certain trials can be moved for publicity reasons. Alternatively, if the crime was outrageous and occurred in a small community it might be impossible to receive a fair trial there, so the case would be moved. Otherwise, trials cannot be moved.
Can I decide to change my attorney in the midst of a trial?
Generally you cannot change attorney during a criminal trial, but it does happen. There is something called a Marsden Motion, which the defendant can raise. The judge clears the courtroom of all prosecutors and all the public. It's a closed hearing where the judge has to determine whether the attorney did something wrong or didn't do something they were supposed to do when an actual conflict arose.
Will I have the chance to speak in court?
It depends. You do have a right to remain silent. You generally would have a right to testify in your own defence, if you want to during a trial. Other than that, you generally would have to speak through your attorney during the trial, or the judge would have to give you permission. But you do have a right to testify in your own defence in court. You can demand to take the stand. But your attorney cannot willingly present perjured testimony. So if the attorney knows you are going to get up there and lie in court, all he can do is ask you to give a narrative and cannot ask specific questions.
Can I demand that a witness take a polygraph test?
No, polygraph tests are generally not admissible. What polygraphs tests are, they are often used as an interrogation technique. So I'm a police officer. I say to you, witness or defendant, "Will you take a polygraph test?" Your answer to that, in and of itself, will tell me a lot. If you say, "No I won't," as a police officer I might say, "This person's lying or has something to hide." You can't force somebody to take them. It's a valuable interrogation technique, but in and of itself, not for what the polygraph says, very common myth.
Can I hear what all the witnesses say?
You have a constitutional right to hear all of the evidence and witnesses against you, and to cross-examine them through your attorney. So anything that is said in court, the witnesses have to say it on the stand and against you.
When can I be held in "contempt"?
First of all if you're a defendant they can never force you to testify or say anything; you have a right to remain silent. However, you can be held in contempt if you are disruptive, if the judge tells the attorney to be back at a certain time or to refrain from something, or to do or not to do something; it is rarely used but it is a tool to keep order in the courtroom.
What is the "burden of proof"?
The burden of proof is the entitlement of a defendent in a criminal action to be proven guilty beyond a reasonable doubt. If a reasonable doubt exists, even if guilt is proven, then the defendant is entitled to a verdict of "not guilty."
How does the burden of proof differ between criminal and civil trials?
The difference between the burden of proof in a criminal and civil trial is substantial. In a criminal trial, it is 'beyond a reasonable doubt,' - about 98% guilty. In a civil trial, the burden of truth is usually called 'a preponderance of the evidence,' which means more than 50 percent. Another standard used in some civil trials is 'clear and convincing,' which means exactly 50 percent. So, very, very different burden, very different remedies; money versus incarceration.
What is a "mistrial"?
If the jury hangs or cannot reach a verdict, the judge declares a mistrial. If there was some other procedural mis-step or misconduct within the process, the judge can declare a mistrial. It means the trial is aborted, and depending on the circumstances, it's either over or they have to do the trial again.
What is an "acquittal"?
An acquittal is when a jury of 12 peers finds you not guilty of a criminal charge. Then you are acquitted. All 12 have to agree, then an acquittal means charges are dismissed.
Can I choose to have my defense attorney present his case first?
The prosecutor always goes first because they have the burden of proof. The defense doesn't have to prove anything. Once the prosecution has presented their case the defense may decide nothing further needs to be said; if the prosecutor hasn't proven his case, the defense can ask the judge whether there is enough to go to the jury, and the judge then decides. The defense may or may not present a defense - though it usually does. Sometimes that may be the defendent testifying and often it will be other witnesses, but this defense will always come after the prosecution.
What does "deliberation" mean?
Deliberation is supposed to be a meaningful communication between and among the jurors. They are meant to deliberate the jury instructions which are charged and read by the judge to the jury, and the evidence in the case, in order to determine guilt or innocence. There is supposed to be meaningful communication and deliberation among the jurors. A juror is not supposed to just say, "I've made up my mind, I'm not going to discuss it." They're supposed to be open-minded until the end of trial and discuss the evidence amongst all jurors before the jury votes.
