Running Head: LEGAL RIGHTS AFFORDED TO THE ACCUSED Legal Rights Afforded to the Accused By Wendy Simon Kaplan University When an officer arrests an individual, the accused is taken into custody. Similarly, when a grand jury returns an indictment or a prosecutor files an information, a judge or magistrate issues a warrant for the arrest of the person charged if not already under arrest, and the person is taken into custody.
When people are taken into custody, before they are questioned, they must be informed that anything they say may be held against them in a court of law, and that they have the right to remain silent, consult with a lawyer before and during questioning, and have a lawyer appointed to represent them if they cannot afford one. The accused are also told that they can exercise these rights at any time. These rights are known as Miranda Rights. This is because the U. S. Supreme Court ruled in 1966 in Miranda v.
Arizona that when law enforcement officers question people taken into custody, the evidence garnered from their interview cannot be used against them unless they have been informed of their constitutional rights to counsel and to remain silent. If a person has been arrested without a warrant, law enforcement officials may hold him or her for a period of time necessary to handle certain administrative tasks (fingerprinting, checking to see if the person is the subject of any outstanding warrants, etc. ).
This time may vary depending on the facts of the particular case, but it’s generally quite brief, usually no more than 48 hours. The arresting entity may not hold the person beyond that time without an initial or first appearance or arraignment before a judge or magistrate. A preliminary hearing is a very important step in the entire process. Usually the state will be required to call at least some witness or witnesses to the stand to convince a judge that probable cause exists. This process is important because witnesses, including police officers, do not have to talk to defense counsel as he or she prepares for trial.
This preliminary hearing may be the only time counsel has an opportunity to hear what a witness has to say. The testimony of all witnesses at a preliminary hearing is given under oath and subject to cross-examination. The testimony is recorded. This process is a very important tool in preparing for your jury trial later in Criminal Court. Since the judge conducting the preliminary hearing will only be making a probable cause finding there is often no need for you to testify or for your witnesses to testify.
Many clients become frustrated when they are not allowed to take the stand and tell their side of the story at the preliminary hearing. Many times the reason the attorney does not allow them to do that is because, in the attorney’s mind, the state has put on sufficient evidence to establish probable cause. The case, therefore, will be bound over to the grand jury. If the lawyer were to allow you or your witnesses to testify, it would simply be giving the prosecutor’s office the opportunity to hear your version of the events and prepare to refute that at the trial.
It is the rare situation that a client can help himself or herself by testifying at the preliminary hearing. As important as they are, there are legitimate reasons to “waive” or give up your right to a preliminary hearing. Often times clients will waive their right to a preliminary hearing in return for the state’s agreement to reduce the client’s bond. Your temporary release from jail by waiving your right to a preliminary hearing must always be balanced against the day when you will face a jury with no idea what a witness is going to say.
Further, once you have had a preliminary hearing, your lawyer may uncover weaknesses in the state’s case that would justify a Criminal Court judge in reducing a client’s bond anyway. Once the judge conducts a preliminary hearing, he or she will make a “probable cause” finding. If he or she believes that probable cause does not exist, the case will be dismissed. This judge is not making a guilt or innocence finding, beyond a reasonable doubt. The judge simply is determining whether there is some factual basis to justify the issuance of an arrest warrant.
Judges nearly always make that finding. An accused or criminal defendant’s first court hearing is an “arraignment” before a judge or magistrate. An “arraignment” is an appearance in court where charges are formally read to a defendant. If bail has not previously been set, it is often set at the same time as the arraignment. Bail (or “bond”) is often granted in a standard amount, depending upon the crime charged. In some jurisdictions, there is a subsequent “formal” arraignment, where the formal charges (“indictment” or “information”) are presented to the defendant.
These charges are drafted by the prosecutor, and may vary from any original charges that were drafted by the police. At the arraignment, the defendant is offered the opportunity to enter a formal plea. A defendant will plead “guilty”, “not guilty” or “no contest” plea, which is treated by the court in the same manner as a guilty plea. Sometimes, the defendant will “stand mute,” and a “not guilty” plea will be entered by the court on his behalf. If a “not guilty” plea is entered, the court will ordinarily advise the suspect of his right to remain silent and his right to an attorney.
If a defendant is indigent, he will usually be given the opportunity to petition the court for an appointed attorney. If bail is granted, and the defendant posts the required bail, he or she will be released. A defendant will be released on his own recognizance — his promise that he will appear for the next court hearing. In some instances, bail will be set in a very high amount. A defendant who is accused of very serious crimes may be denied bail, or have bail set in the millions of dollars.
A defendant who is released on bail must attend all subsequent court hearings, or risk having his bail forfeited. However, if you are charged with a misdemeanor, the next hearing is likely to be a “pretrial,” where the case is scheduled for trial. If a defendant is charged with a felony, but has not been “indicted” by a “grand jury,” the next step will be a “preliminary examination” where the prosecution must demonstrate to the satisfaction of a judge that there is reason to believe that a crime was committed, and that the defendant was the person who committed the crime.
The defendant is allowed to question witnesses at this hearing. While the defendant ordinarily can present evidence, and may choose to testify, most defendants choose not to do so. If the Court is satisfied by the prosecutor’s evidence, the felony charges will be approved. Depending upon your state’s rules of criminal procedure, a defendant may be transferred to a different court for all further proceedings. He may be arraigned again, after the preliminary examination, and subsequently will have a pretrial.
