Monthly Archives: November 2016
Some defendants make the mistake of thinking that they can handle the case on their own. However, the criminal justice system is complex and difficult for individuals to navigate if they are unfamiliar with it. A simple mistake such as missing a deadline can ultimately result in a conviction that has tragic consequences. This makes it incredibly important to hire a criminal defense lawyer who is prepared to fight for the defendant’s rights.
The United States Constitution describe the rights that every citizen is entitled to. This important document and its subsequent amendments explain how the government operates. The Constitution describes the fundamental rights that people have, such as the freedom of speech, religion and the press. The Fourteenth Amendment is important because it basically extends the same federal rights to individuals who are tried in state courts. This is vital since most criminal trials occur in such courts.
The United States Constitution provides for basic fundamental rights. Many of these laws are implicated in the criminal justice system. This includes laws that pertain to the filing of criminal charges. A person has the right to a grand jury in federal felony proceedings. Additionally, he or she has the right to clear notice of criminal charges against him or her. The United States Constitution also prohibits the passing of retroactive laws that criminalize certain behaviors after the fact. Likewise, a criminal defendant cannot be tried more than once for the same offense. If a person is under investigation, he or she has the right to be free from unreasonable searches and seizures as provided by the Fourth Amendment to the United States Constitution.
These fundamental rights also affect the punishment that a person can be subjected to during the proceedings and after. This includes the right to be free from excessive bail. Additionally, a person has the right to be free from cruel and unusual punishment as stipulated in the Sixth Amendment to the United States Constitution.
Many fundamental rights apply to the defendant’s right to a fair trial. These rights include:
The Right to Due Process of Law
The right to due process of law prohibits the federal government from arbitrarily affecting a person’s rights without some type of formal procedure. Due process means that the government must respect the legal rights that the defendant is owed.
Freedom from Self-Incrimination
The Fifth Amendment provides that a person cannot be made to testify against himself or herself. This applies to judicial proceedings, such as not having to testify in open court as well as to investigative questioning in which the criminal defendant can refuse to answer a police officer’s questions.
At the trial court, the prosecution has the burden of proof to show that the defendant committed each element of the crime by proof beyond a reasonable doubt. The defendant has the right to confront his accusers, to be tried by a jury of his or her peers and to have a fair trial. The trial court is in the best position to judge the credibility of the evidence since he or she is present when this information is presented. Therefore, the appellate court gives deference to the trial court. A criminal defendant has the right to make an appeal to the higher court to have the verdict reviewed. The criminal defendant may go through a number of appeals, each time advancing to a higher level of the court system.
Purpose of Appeal
An appeal is the only way that a criminal defendant can formally make a request to have the verdict reviewed after receiving a guilty verdict. The appellate court reviews the action by the lower court to determine if the verdict meets the necessary criteria.
Reasons for Appeal
There may be a number of reasons why a criminal defendant alleges that the trial court got it wrong. He or she may base an appeal off of a lack of evidence. The appeal may also allege that the defendant’s rights were violated. Additionally, an appeal may be based on an error being made during the criminal procedure. Mistakes made by the judge or jury may provide the basis for an appeal.
Process of Filing an Appeal
The step that initiates an appeal is filing a notice of appeal with the clerk of the trial court where the case was initially heard and tried. This notice of appeal must usually be made within ten days after the trial court has announced the judgment of conviction. Alternatively, this notice of appeal may be made right after sentencing whether the judgment has been officially issued or not. However, the time limit is based on the jurisdiction’s procedural rules and may vary. It is important to seek legal counsel to determine when this notice must be filed. The time limit is mandatory in nature, so if the time limit passes, the defendant’s right to file the appeal can be affected. Many jurisdictions allow a late notice of appeal that is filed within 30 days after the initial time limit has expired. However, the defendant may have to establish that there was excusable neglect that resulted in the late filing.
After preparing the notice of appeal, the record must be prepared. The record is the information that made up the lower court case. This usually includes court reporter’s transcript of the case, which is a word-by-word account of the proceedings in court. This includes the information discussed at trial as well as during pre- and post-trial motions.
Rules that Apply
The rules of appellate procedure apply to the appeals procedure. These rules must be carefully followed. If the case is in federal court, the Federal Rules of Appellate Procedure must be followed. Different rules pinpoint the process that must be followed according to this set of rules. For example, Rule 3 discusses the information that must be provided in the notice of appeal. Rule 4(b) addresses how the notice of appeal must be filed. The appendix section of this set of rules contains a sample form that can be modeled after to prepare the notice.
Determination of an Appeal
The lawyers prepare the appeal documents for the court. The court may hear oral arguments in which the lawyers explain their positions. The judges on the appellate court review the briefs and this information to determine whether the case should be reversed, the case should be affirmed or the judgment should be modified.
Individuals who have been convicted of a crime may choose to contact a criminal defense lawyer. The lawyer does not have to be the same person who completed the initial trial work, and it is often advised not to use the same lawyer since appellate lawyers need a different skillset than trial lawyers. Additionally, the trial lawyer may have made mistakes during the process which may justify an appeal. A criminal appellate lawyer can provide additional information on this process.
The Sixth Amendment of the United States Constitution gives someone the right to have a lawyer if he or she faces criminal charges.
Some states specifically provide for the equivalent right to legal counsel in their state constitution. These legal protections generally provide this right for people facing felony charges. Some of these provide a broader scope of this right than the federal constitution provides.
The Fourteenth Amendment to the United States effectively provides this right to individuals charged under state crimes. Even if there is not a specific right in the state constitution, individuals charged of state crimes have the right to seek legal counsel.
When the Right Attaches
It is also important to understand when this protection attaches. A criminal defendant has the right to legal counsel at every critical stage of a criminal proceeding. For federal charges, it attaches when the defendant is facing adversary judicial proceedings. Generally, the right attaches when a defendant is indicted, is scheduled for a preliminary hearing, has an information assigned against him or her or is arraigned.
A defendant must be facing actual charges of a crime in order for this right to attach. This right does not arise simply because the defendant is a suspect of a crime or is under investigation. Similarly, an arrest does not automatically trigger this right. However, a person who believes he or she is under investigation has the right to hire a lawyer.
If the right arises, the government cannot do anything to interfere with the defendant’s right to seek legal counsel. The right is afforded only in criminal cases, not in civil or administrative proceedings or in those proceedings associated with suspending a person’s driver’s license.
Court Appointed Lawyer
In order for a defendant to receive a court appointed lawyer, he or she must be considered indigent. This is determined by assessing whether the individual meets criteria established by the court when such criteria exist. Some states do not use a particular formula or income guideline and determine this on a case-by-case basis. In these states, courts look at the totality of the defendant’s financial circumstances, including his or her income, assets, debts and other financial obligations that affect his or her ability to pay for a lawyer.