Witness impeachment is the process of challenging the credibility of a witness in trial. There are many ways by which a witness can be impeached.
The statute of limitations defines a time limit within which the prosecution must file criminal charges before they are barred from doing so.
Evidence gathered during a DUI traffic stop can sometimes be excluded from trial, if the officers have violated the search and seizure rules that stem from the Fourth Amendment.
Do you ever have to say something in order to invoke your privilege against self-incrimination?
You’ve seen it time after time on primetime television police shows—cops slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” And so on. Believe it or not, this ubiquitous arrest scene presents a rare instance in which Hollywood stays true (for the most part) to the laws of criminal procedure. Indeed, the (in)famous case of Miranda v. Arizona requires that law enforcement officers advise arrested suspects of certain rights, including the option of saying nothing. ((1966) 384 U.S. 436.) Miranda, which derived from the Fifth Amendment privilege against self-incrimination, also triggered the practice of officers telling arrestees that:
- what they say can be used against them in court
- they have the right to consult with a lawyer
- a lawyer can be present during questioning
- a lawyer will represent them free of cost if they can’t afford but want one, and
- if they decide to answer police questions, they can stop the interview at any time.
(This article focuses on the privilege against self-incrimination for suspects who are out of custody. To read about the prosecution using the silence of someone who's under arrest, see Miranda and Post-Arrest Silence.)
When Must the Police Advise You of Your Rights?
Officers must provide Miranda warnings whenever they interrogate someone who is in custody. “Interrogation” includes not only express questioning, but also any words or actions that police officers should know are reasonably likely to elicit an incriminating response. Being “in custody” describes a situation in which a reasonable person in the suspect’s shoes would not feel free to leave.
The corollary of Miranda warnings is that the prosecution cannot use a suspect’s silence as evidence of guilt in a court of law—otherwise the warnings would be meaningless. But, the law doesn’t require interrogating police officers to “Mirandize” someone who isn’t technically “in custody.” As a result, police officers routinely question suspects after carefully letting them know that they are not under arrest and are free to leave—that way, officers don’t have to provide Miranda warnings. Even in that situation, though, suspects’ silence was sacrosanct: Prosecutors couldn’t use it against them at a later trial. That is, until somewhat recently.
You Can’t Be Silent if You Want to Be Silent
In a closely contested 2013 decision, the United States Supreme Court held that prosecutors can, under appropriate circumstances, point to an out-of-custody suspect’s silence in response to police questioning as evidence of guilt. (Salinas v. Texas, 133 S. Ct. 2174 (2013).) According to the Court, the prosecution can comment on the silence of a suspect who:
- is out of police custody (and not Mirandized)
- voluntarily submits to police questioning, and
- stays silent without expressly invoking his Fifth Amendment rights.
The only way to prevent the government from introducing evidence at trial of the suspect’s silence is to explicitly invoke the right to say nothing. In other words, without being warned by the police or advised by a lawyer, and without even the benefit of the familiar Miranda warnings (which might trigger a “I want to invoke my right to be silent!”), the interviewee must apparently say words to the effect of, “I invoke my privilege against self-incrimination.”
(To read about an earlier Supreme Court decision on silence before arrest, see Can a prosecutor use pre-arrest, pre-questioning silence to “impeach” a defendant?)
In the case that led to this new rule, a police officer who was investigating a murder asked the suspect (and eventual defendant), who was not then in custody, a series of questions over the course of an hour. The officer did not Mirandize the suspect. The suspect answered the questions, but hesitated when the officer asked whether a ballistics test would prove that the shell casings at the crime scene matched the suspect’s gun. He fidgeted for a bit and didn’t answer the question; the officer then moved on to additional questions that the suspect answered. Prosecutors then charged the suspect with murder. At trial, they argued that his reaction to the officer’s shell-casing question suggested his guilt. The Court ruled that this argument by the prosecutors was proper—the defendant had not clearly indicated that he intended to assert his Fifth Amendment right when asked about the shell casings.
What to Say to Invoke the Right to Silence
The 2013 Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to effectively claim the right to silence. Courts have indicated that they should make clear that they are invoking their Fifth Amendment privilege against self-incrimination. That way their subsequent silence cannot be mentioned at trial.
(The ACLU advises people about what to do and say when stopped by law enforcement, noting that in some states, if the police ask you to identify yourself, you must give your name.)
The U.S. Supreme Court has the final say on the meaning of the federal Constitution, but state courts can interpret their own constitutions to provide greater individual freedom. The law on silence and self-incrimination may vary from one state to the next. That variation is one of many reasons it's critical to have legal representation when facing criminal charges.
How police officers and prosecutors initiate criminal cases.
A criminal case usually gets started with a police arrest report. The prosecutor then decides what criminal charges to file, if any. Some cases can then go to a grand jury for a criminal indictment or to a preliminary hearing, where a judge decides if there is enough evidence to proceed. Here's how this all works.
Is it the defendant's right to throw in the towel when capital punishment is on the line?
On November 5, 2009, Army psychiatrist Nidal Hassan opened fire at Fort Hood, Texas, killing 13 people and wounding another 31. There isn’t much doubt about these facts since, when representing himself at his August, 2013 trial, he admitted them. He informed a military jury that he committed the attacks in response to what he perceives to be the United States war on Islam. He reportedly told mental health officials that he wanted to be considered a martyr.
Lawyers charged with assisting Hassan reported that the soldier wanted the death penalty. He rebuffed invitations to present evidence and respond to accusations, and refused to present any mitigation evidence at the penalty phase of his trial. Not surprisingly, the jury sentenced him to death.
A Formidable Right
The right to self-representation emanates from the Sixth Amendment to the U.S. Constitution. It’s a formidable right, as there’s very little courts can do to stop most defendants from representing themselves. Forcing a lawyer on a defendant generally requires severe mental incompetence or attempts to obstruct court proceedings. Otherwise, the accused are pretty much free to represent themselves, regardless of how bad that idea that is. (Faretta v. California, 422 U.S. 806 (1975).)
There are certain conditions courts can attach to defendants’ self-representation. For example, judges generally must receive a “knowing and intelligent” waiver of the right to counsel after warning defendants of the risks of proceeding without a lawyer. (One of the detriments is the inability to claim ineffective assistance of counsel when appealing a conviction.) In some cases, courts can also appoint stand-by counsel—lawyers who are ready to take over if defendants can’t or won’t continue to represent themselves.
Rigging the Fight
The right to self-representation is somewhat intuitive: If someone’s life or liberty is on the line, shouldn’t that person be allowed to decide how the case is litigated?
But what if the defendant wants to be convicted, or even executed?
Courts have generally held that defendants can represent themselves however they see fit, regardless of their motivation. The issue occasionally arises in capital cases like Hassan’s (except that his occurred in military court, which doesn’t alter the analysis).
At a death penalty trial, if the jury finds the defendant guilty, the case proceeds to a penalty phase. At that point, the prosecution can present aggravating evidence to convince the jury to order the defendant’s execution. The defense is free to present mitigating evidence to counteract the prosecution’s presentation. The case essentially becomes a battle over the value of the defendant’s life.
The New Jersey Supreme Court, for one, has taken the position that the need for a meaningful determination of a life-or-death sentence should trump the right to self-representation. It held that defendants shouldn’t be able to prevent presentation of mitigation evidence, evidence that might save their lives. (State v. Reddish, 181 N.J. 553 (2004).)
Up to the Defendant
But most courts throughout the U.S. have held that defendants who represent themselves in capital trials can elect not to offer mitigating evidence. For example, a federal appeals court in 2002 held that a trial judge was wrong to appoint a lawyer to represent a defendant at a penalty phase. The defendant didn’t want a lawyer or a mitigation presentation (apparently because he theorized that the chances of a court overturning the conviction on appeal were better with a death sentence). (U.S. v. Davis, 285 F.3d 378 (5th Cir. 2002).) That court, and others since it, said it’s up to the person on trial to make the ultimate decision.
We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.
Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys
Criminal appeals involve detailed procedure. They typically take months, if not longer, to play out.
Criminal appeals are notoriously slow and complex. The following provides a general overview of the process by which they unfold. (For more information about appeals, see Appeals in Criminal Cases.)
When can I file an appeal?
The general rule is that cases may not be appealed until the trial court enters a final judgment, which is the official recording of the judge or jury’s guilty verdict or the judge’s order denying any post-trial motions. Not surprisingly, this is known as the “final judgment” rule. The ideas behind it are to prevent piecemeal and repetitive appellate review of trial judges’ rulings and to avoid appeals altogether in cases that end with not-guilty verdicts.
How long do I have to decide whether I want to appeal?
Appeals are subject to strict time limits. A defendant may have to file a document called a notice of appeal very soon after entry of final judgment, often within seven to ten days.
A notice of appeal tells the prosecution and court that the defendant intends to bring an appeal. Defendants who later change their minds may withdraw notices of appeal without penalty, but if they don’t first file their notices in time, they will likely lose their right to appeal.
How long will the whole appeal process take?
The appeals process usually takes many months. A trial transcript must be prepared, and both the defense and prosecution must prepare briefs (written arguments). Also, some cases go through two or even three levels of appellate courts.
What happens after I’ve given notice that I want to appeal?
Once the defense files a notice of appeal, a transcript of the trial is prepared and sent to the appellate court and the parties. Then the appellate court schedules the deadlines for submission of legal briefs. The appellate court may also schedule a date for oral argument for the parties to appear before the judges personally to supplement their written arguments and respond to questions.
What happens after the briefs are filed?
After the defense and prosecution file their briefs, the lawyers may have the opportunity to orally argue the appeal, as discussed above. But it’s increasingly common for courts to decide appeals on the briefs and trial record (transcript, pleadings, and exhibits) without hearing argument. If an oral argument does take place, it will likely be limited in time, from a few minutes per side in some state appellate courts to 30 minutes in some federal courts. Because both sides will have submitted their arguments in writing ahead of time, the appellate judges will know what the issues are and often limit the discussion to specific questions. After that, they may take weeks or months to issue a decision.
Get a Lawyer
If you’ve been convicted of a crime and want to challenge the conviction or sentence, consult an experienced criminal appellate lawyer. Appellate lawyers have special expertise regarding the appeals process and can provide a neutral analysis of your chances.