What Happens at Trial?
Q: What is the “right to a speedy trial”?
A: A defendant has a constitutional right to a speedy trial.
“In criminal prosecutions, the right of a defendant to demand a trial within a short time since to be held in jail without trial is a violation of the “due process” provision of the 5th Amendment.”
On a misdemeanor that means they have a right to a trial within 45 days. If it’s a felony they have a right to a preliminary hearing within 10 days and then after if they are held to answer on that charge at a preliminary hearing, they have a right to an arraignment in 14 days and then a trial within 60 days after that.
These are very specific, constitutionally set time periods. Often within the process time is waived which is when people give up their speedy trial rights to resolve the case or give their attorneys more time to conduct interviews or get evidence.
Q: What is the right to a trial by a “jury of my peers”?
A: A “jury of your peers” are members of your community. It does not entitle you to people who are the same sex, the same race, the same socio-economic status. They are usually provided by the voter roles or by the driver’s license roles. It’s 10 people from the community, and that is a jury of your peers.
Q: How is the location of my trial determined?
A: The location of your trial is usually determined by where the crime was 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 are in and often, those are just randomly selected by what court you are closest to and what police station they file at.
Q: Can I have the location of my trial moved?
A: Certain cases can be moved for publicity reasons or because in a small community the crime could be so outrageous that it would be impossible to have a fair trial there. Otherwise, the answer is generally no.
Change in the location of a trail usually granted to avoid prejudice against one of the parties.
Q: Can I decide to change my attorney in the midst of a trial?
A: The general answer is no. Does it happen? Yes. There is something called a “Masrden motion,” which the defendant can raise. The judge clears the court room 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, an actual conflict arose.
Masrden Motion: “A request to the court by a criminal defendant to discharge their lawyer on the basis of being incompetently or inadequately represented by counsel.”
Q: Will I have the chance to speak in court?
A: It depends. You do have a right to remain silent. You generally would have a right to testify in your own defense if you want to during the trial. Other than that you generally would have to speak through your attorney or the judge would have to give you permission but you DO have a right to testifying in your own defense.
You can demand to take the stand but your attorney cannot willingly present perjured testimony. So, if your attorney knows you’re going to go up there and lie, all he can do is ask you to give is a narrative and cannot ask you specific questions.
Q: Can I demand that a witness take a polygraph test?
A: No. Polygraph tests are generally not admissible…They’re often used as an interrogation technique.
Polygraph: A device that measures and records blood pressure, pulse, respiration and skin conductivity while the subject is asked a series of questions. The measurements are indicators of anxiety that accompanies the telling of lies.
Example: 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 in and of itself, not for what the polygraph says. Very common myth.
Q: Can I hear what all the witnesses say?
A: 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 against you.
Q: When can I be held in contempt?
A: …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. If you’re disruptive, if the judge tells an attorney to be back at a certain time or refrain to do or not do something. It’s rarely used, but it’s a tool to keep order in the courtroom.
Contempt of Court: Behavior in or out of court that violates a court order, or otherwise disrupts or shows disregard for the court. Punishable by fine or imprisonment.
Q: What is the “burden of proof”?
A: A defendant in a criminal action is entitled to be proven beyond a reasonable doubt that guilt exists. If a reasonable doubt exists, even if guilt is proven, then the defendant is entitled to a verdict of “not guilty.”
Q: How does the burden of proof differ between criminal and civil trials?
A: The difference between the burden of proof in a criminal and a civil trial is substantial.
In a criminal trial it is beyond a reasonable doubt, which is like 98 percent. In a civil trial it is usually what they call “preponderance of the evidence,” which means more than 50 percent and 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.
Q: What is a mistrial?
A: If the jury hangs or cannot reach a verdict, the judge declares a mistrial. If there is some other procedural misstep 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.
Mistrial: A trail that ends prematurely & without a judgement, due either to a mistake that jeopardizes a party’s right to a fair trial or to a jury that can’t agree on a verdict.
Q: What is an acquittal?
A: An acquittal is when a jury of 12 peers finds you not guilty then you are acquitted. All 12 have to agree, then an acquittal and all charges are dismissed.
Acquittal: A decision by a judge or jury that a defendant in a criminal case is not guilty of a crime. It is not a finding of innocence, simply a conclusion that the prosecution has not proved its case beyond a reasonable doubt.
Q: Can I choose to have my defense attorney present his case first?
A: No, the prosecutor always goes first because they have the burden. The defense doesn’t have to prove anything. Once the prosecution has presented their case, the defense may decide that nothing further needs to be said. The prosecutor hasn’t proven his case. You can ask the judge whether there is enough to go to the jury. The judge then decides. Then the defense may or may not present a defense, it usually does. Sometimes that may be the defendant testifying. Often it will be other witnesses.
Q: What does “deliberation” mean?
A: “Deliberation” is supposed to be a meaningful communication between and among the jurors of the jury instructions, which are charged and read by the judge to the jury and the evidence in the case for a determination of the facts for guilt or innocence. So, a juror is not supposed to 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 amongst all the jurors the evidence, and then the jurors can vote.