Client's Rights

Dear Client,

Here at The Williston Firm, we believe every person charged with a crime should know their rights:

The Defendant's Right to Remain Silent

The Fifth Amendment to the U.S. Constitution (and a similar provision of the Declaration of Rights in the Florida 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. The prosecutor is also prohibited from bringing to the jury's attention the failure of a defendant to testify. Because the accused has an absolute right to remain silent and has no obligation to prove anything, there is a fear that such a remark by the prosecutor might cause a juror to think that he remained silent because he was guilty. If the prosecutor makes such a remark during a trial, the accused can ask the Judge to declare a mistrial, and they have to start over with a new jury. (A defendant may, however, be called as a witness in a civil case.)

The Defendant's 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 prevents secret trials and, except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses. A recent case from the United States Supreme Court (Crawford v. Washington) strongly emphasizes the importance of this right.  

The Defendant's 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 when it appears that they will coach each other. The Defendant actually has the right to have the judge keep all of the prosecution witnesses out of the courtroom except when they are testifying. The judge will even instruct them that they may not discuss the case or their testimony with each other once the trial begins.

The Defendant's Right to a Jury Trial

The Sixth Amendment gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (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 on a vote of ten to two.) In Florida a 12 person jury is only used in capital cases. In less serious cases a 6 member jury is used. In misdemeanor cases where the judge certifies in advance that he would not sentence the accused to jail, even if they were found guilty, the defendant is not entitled to a jury and may be tried by the judge acting in place of a jury.

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.

The Defendant's 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." A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants 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 non-jail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.

A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.

The Defendant's 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. In Florida, an accused who is charged with a misdemeanor is entitled to have his case brought to trial within 90 days of his arrest. If he is charged with a felony, he is entitled to have his case tried within 175 days of his arrest.  In Florida, there are "recapture windows" of 15 days permitting the court to set a trial within just a few weeks if the case is not commenced within these time frames. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.

The Defendant's 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 jurisdictions. 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 only 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 crime. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.

WHEN IN DOUBT ABOUT YOUR RIGHTS, INSIST ON SPEAKING WITH AN ATTORNEY BEFORE GIVING ANY INFORMATION WHATSOEVER.

Yours truly,

Satasha Williston , Esquire

James P. Hill, Esquire