Top 20 Criminal Trial Rights

There are several important Statutory and Constitutional Rights that every person who is prosecuted in a Michigan Court for a criminal allegation has:

1. Right to be represented by a lawyer. Anytime your liberty is at risk you have an absolute right to have a lawyer defend you. The right to counsel also includes your right to select the lawyer that is right for you provided that you hire that lawyer and the lawyer is not hired on the eve of trial. Some Judges may prevent you from hiring the lawyer of your choice if hiring that lawyer will delay the trial. If you cannot afford a lawyer, you can petition the Court for a public defender. A public defender is not a free lawyer. The Court may order you to reimburse for the cost of the lawyer if it is later determined that you have the ability to do so. You also have the right to represent yourself, if you are foolish enough to choose this option. A person who represents himself or herself is held to the same standard as a lawyer, which places them at a tremendous disadvantage.

2. Right to address bond. Unless the charge allows for a denial of bond (such as treason or murder), you have the right to ask for a bond to be set. The Court will consider a number of factors in making its determination, including the risk of flight and danger to the community.

3. Right to preliminary examination for Felony and High Court Misdemeanor charges in which a Grand Jury Indictment did not occur. A preliminary examination is a hearing at the District Court to determine if there is probable cause to believe that a felony or high misdemeanor occurred, and that you were the person who committed that offense.

4. Right to a trial. You have the right to a jury trial for any criminal allegation that carries the possibility of incarceration. A jury in a Michigan Court is comprised of 6 members for misdemeanors which carry a possible penalty of 1 year or less in jail; for felony cases and high Court misdemeanors the jury contains 12 members. In many instances the Court will also select alternate jurors in the event that one of the jurors is excused during the course of the trial. The jury is comprised of members of the community who are selected by both the Prosecution and the Defense to serve as jurors on the case. You can have a bench trial (trial decided by the presiding Judge) if you agree to the bench trial, the Prosecution agrees, and the Judge agrees.

5. Right to be present in the Court for the trial. You have the absolute right to be present in Court to see and hear the testimony of each witness called to testify at trial if you are the Defendant. Witnesses (other than the Defendant, regardless if he or she chooses to testify) may be excluded or sequestered from the Court room so that their testimony is not influenced by the testimony of others.

6. Right to cross examine witnesses. Any witness called by the Prosecution can be cross examined by the Defense. Likewise, the Prosecution can cross examine any Defense witness.

7. Right to have witnesses testify for the Defense. In certain types of cases, this also includes the right to have an expert testify concerning a particular issue.

8. Right to subpoena witnesses. The Prosecution and the Defense both have the ability to subpoena witnesses to compel them to testify in Court. However, this ability alone does not automatically mean the witness will end up testifying in Court. First, sometimes a witness cannot be located. If a witness cannot be found despite using due diligence to locate the witness, sometimes the Court will allow any prior testimony concerning the issue to be used in Court. Furthermore, sometimes a witness is not available to testify because he or she is beyond the reach of the subpoena (for example, residing in a foreign country), is not competent to testify, or can assert a privilege to avoid testifying (5th Amendment privilege, attorney-client privilege, etc.).

9. Right to testify in own defense. You have the absolute right to testify in your own defense if you are on trial for a criminal allegation made by a Prosecutor. However, if you choose to testify, the prosecution or city attorney has the right to cross examine you. Furthermore, the Prosecution can call rebuttal witnesses to rebut the things that you and/or your witnesses testify to during the course of the trial. If convicted, you have an absolute right of allocution at sentencing. This means that you have the right to tell the Judge anything that is relevant for the Judge to consider concerning sentencing.

10. Right to remain silent. Even at trial, you have the absolute right to remain silent. You cannot be compelled to testify at a trial, and the Prosecution is not allowed to comment upon your refusal to testify.

11. Presumption of innocence. The presumption of innocence continues all the way up to the time that the verdict is rendered. Because you are presumed innocent, you are not required to testify or call any witnesses in your defense.

12. Burden of proof with the prosecution to prove the crime beyond a reasonable doubt. Beyond a reasonable doubt is the highest burden in our criminal justice system. Any 1 reasonable doubt means that the verdict must be not guilty. For some defenses (for example, self defense), the Defense has the burden of producing some evidence to support the defense in order for that defense to be considered. Generally, if the Court allows the defense to be asserted, the Prosecution must disprove the defense beyond a reasonable doubt.

13. Right to a speedy trial. Speedy trial rights attach once you are formally accused of a crime. There is not speedy trial right to be arrested, however the statute of limitations in some instances may prevent a prosecution from going forward. In Michigan there is both a Constitutional and Statutory right to a speedy trial.

14. Right to discovery. With some limited exceptions (for example, the identity of a confidential informant; the address of the alleged victim, etc.) the Defense is entitled to discovery to adequately contest each allegation made by the Prosecution. The right to discovery attaches once a criminal prosecution commences. When there is an ongoing investigation which has not yet resulted in a criminal charge, the Prosecution and/or law enforcement has no obligation to provide discovery.

15. Right to due process of law. You have a right to fair Court procedures and proceedings.

16. Right to present issues to the Court. Your attorney can file motions on your behalf, when appropriate, to address issues with the Court relevant to your defense. Motions are legal pleadings and arguments which ask the Court to make determinations as to how to proceed. The lawyer may ask to suppress evidence, to quash the information (rule that there is not sufficient evidence for the case to go forward), to not allow the jury to consider certain evidence, to lower bond, etc.

17. Right to a unanimous jury verdict. The Jury verdict must be unanimous for either conviction or acquittal. A Jury that cannot reach a unanimous verdict often results in a hung jury. A hung jury allows the case to be prosecuted again.

18. Right to appeal trial verdict. A Defendant that loses his or her trial has the right to have a higher Court consider the issues of the case and look for error committed by the trial Court, the Prosecution, or Defense counsel. A conviction after a plea of guilty or no contest usually means that the Appellate Court has the discretion to not hear an appeal. The Prosecution does not have the right to appeal an acquittal due to Double Jeopardy protections contained in the Constitution.

19. Right to destruction of fingerprint cards if acquitted of all charges.

20. Right to competent legal representation. You have a right to have a lawyer that is experienced in terms of providing a defense, who will dedicate time to your case, who will address all necessary issues, and who will make rational decisions concerning the defense of the case.