Rights of the Defense During Trial

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During every criminal trial, defendants enjoy a number of legal rights and protections, which have been in place since the ratification of the Constitution’s Bill of Rights, most notably the fourteenth and fifth Amendments.  These rights during a trial are collectively referred to as “the due process of law”, which the government must offer private citizens during any criminal case.  Some of the most notable rights of the defense during trial are explained below.

Right to Due Process of Law

“Due Process” essentially is the rights afforded private citizens to protect from erroneous or unsupportable attempts to “deprive them of life, liberty, and happiness”.  Through legal precedents, the rights afforded citizens regarding the federal government in the Bill of Rights has been extended to protect citizens from state governments as well.  The most important pieces of law protecting rights to due process are amendments to the United State’s Constitution, which include:

  • The Fourth Amendment, which protecting citizens from unreasonable search and seizure
  • The Eighth Amendment, which prevents cruel and unusual punishment of private citizens
  • The Sixth Amendment, which guarantees right to counsel for individuals accused of a crime
  • The Fifth Amendment, which provides citizens the privilege of preventing self-incrimination

Other rights afforded to defendants via “due process” are the culmination of centuries of American judicial system practices, which generally include:

  • A defendant’s right to a trial that will not impair the ability to mount a defense
  • Requires the government to provide exculpatory evidence to defendants
  • Prevents the government from using entrapment
  • Maintains a defendant is innocent until proven guilty
  • Requires guilt to be prove beyond a reasonable doubt
  • Protects a defendant’s right to present evidence and defend themselves

The Burden of Proof and the Prosecution

According to “due process” rights, the prosecutor is tasked with proving a defendant’s guilt beyond a reasonable doubt.  Commonly, a crime consists of multiple elements, which in total, comprise to form an illegal act.  Prosecutors must show all elements occurred, with each element most likely occurring at the level of beyond a reasonable doubt.  For jury members, the judge’s instructions will also contain the statement that a conviction must show that “no reasonable doubt” exists attesting to a defendant’s innocence.

The Right to Confront Witnesses

In the Sixth Amendment, there exists a “confirmation clause” giving defendants the right to be directly confronted by witnesses, and in turn, the implicit right to cross-examine these individuals.  However, special circumstances do exist, which allow witnesses to testify without a defendant being present.  For example, a defendant removed from the court due to disruption or a defendant failing to appear at a trial, may be tried in absentia in front of their legal counsel.  Additionally, the Supreme Court has upheld that child witnesses in sex crimes cases can testify via close circuit television, which allows a defendant to see the witness, while the witness is not traumatized or intimidated to testify in the presence of their alleged attacker. 

The Right to a Public Trial

The right to a public trial, which is protected by the Sixth Amendment, initially ensured a defendant received a fair and reasonable trial.  However, the attraction of media personnel to courtroom trials has altered the rights and procedures for ensuring a fair, public trial.  Virtually all trials are public, which in turn, allows media personnel, victims, and supports to be in the court.  A judge, however, can limit the number of persons allowed in a courtroom, remove unruly individuals, and restrict television and photographic coverage of a trial.  Additionally, the judge may issue a gag order, which will prevent parties from discussing parts of the criminal proceedings with the news media for fear of jeopardizing a defendant’s right to receive a fair trial.

The Right to a Trial by Jury

The Sixth Amendment guarantees right to a trial by jury for all criminal cases, however, the Supreme Court has interpreted this to guarantee the right to a trial by jury for those individuals facing charges that a carry sentence six months or more in jail.  Trial by judge, instead of by jury, is possible; however, if either side requests trial by jury, it must occur.  Additionally, the size of the jury varies on a state-by-state and case by case basis, with usually at least six jurors up to twelve persons.  In a twelve-person jury, the entire jury does not need to return a unanimous decision in non-death penalty cases; however, a six-person jury panel must return a unanimous decision. 

The Right to Legal Representation

The right to legal counsel is established by the Sixth Amendment, and for cases with a possible punishment of incarceration, indigent defendants must be provided free legal counsel.  The right to counsel commences as soon as judicial proceedings begin, which usually is at the arraignment.  Defendants do have limited rights to represent themselves during a criminal trial, which requires a judge’s approval.  Additionally, defendants can appeal their conviction because their attorney was incompetent; however, they must prove that the mistakes made by their legal counsel denied them their right to a fair trial.  

The Right to a Speedy Trial

The Constitution protects a defendant’s right to a speedy trial; however, no specific time is noted.  Typically, defendants can delay their right to a speedy trial to prepare their legal case or as part of their legal strategy.  Having a case thrown out due to delay in receiving a speedy trial is entirely dependent on the circumstances of each individual case.  Each state has their own rules and regulations regarding time between arrest and going to trial, and if prosecutors do not adhere to these guidelines, charges can be dismissed in limited circumstances. 

The Right to Not Be in Double Jeopardy

In the Fifth Amendment, a clause states “nor shall any person be subject for the same offense to be twice in jeopardy of life or limb”.  In essence, this clause prevents defendants from being charged with the same incident of crime within a given jurisdiction more than once.  However, different jurisdictions, such as state and federal, can file charges at the same time for the same crime.  Additionally, retrials for dismissed or overturned charges are legally allowed, as well as retrials stemming from an initial mistrial.  Likewise, civil trials can occur for the same actions being tried in a criminal trial without violating double jeopardy laws.


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