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WHAT YOU SHOULD KNOW ABOUT THE

CRIMINAL TRIAL PROCESS.

Houston Criminal Defense Attorney John T. Floyd provides vigorous

representation for his clients through every stage of the criminal trial

process. It is a critical process that demands diligent legal representation

from the initial criminal investigation through any final appeal.

The foundation of the American criminal judicial process is based upon the

Fifth Amendments prohibition that no individual shall be denied life or

liberty without the benefit of due process and equal protection of the law.

The Founding Fathers were dedicated the principle of establishing an

adversarial system of justice that rejected all the features of European

inquisitorial systems of justice. They developed a concept of due process

of law that extended to the individual a panoply of protections againstthe arbitrary power of the government. These due process protections

were stated in the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defence.

Equal protection and additional due process protections were later expanded

by the Fourteenth Amendment to the United States Constitution and

made applicable to all the States:

Section 1.All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

In Texas, Article 1, Section 10, of the Texas Constitution outlines the

rights of any individual accused of a crime:

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In all criminal prosecutions the accused shall have a speedy public

trial by an impartial jury. He shall have the right to demand the nature

and cause of the accusation against him, and to have a copy thereof.

He shall not be compelled to give evidence against himself, and shall

have the right of being heard by himself or counsel, or both, shall beconfronted by the witnesses against him and shall have compulsory

process for obtaining witnesses in his favor, except that when the

witness resides out of the State and the offense charged is a violation

of any of the anti-trust laws of this State, the defendant and the State

shall have the right to produce and have the evidence admitted by

deposition, under such rules and laws as the Legislature may hereafter

provide; and no person shall be held to answer for a criminal offense,

unless on an indictment of a grand jury, except in cases in which the

punishment is by fine or imprisonment, otherwise than in the

penitentiary, in cases of impeachment, and in cases arising in the armyor navy, or in the militia, when in actual service in time of war or

public danger.

The right to counsel, privilege against self-incrimination, and trial by jury

have been the touchstone of due process of law rooted in the foregoing

constitutional provisions. All other due process/equal protection rights

emanated from this trilogy of constitutional guarantees. The following are

the abbreviated stages of the criminal trial process during which these

guarantees should be remembered and forced into play:

During police investigations that collect physical and eyewitness

evidence designed to identify and arrest a suspect for the offense

committed.

In the investigatory stage a suspect enjoys the protection from

unreasonable searches and seizures by law enforcement authorities.

In the investigatory stage a suspect has a right to retain counsel of his

choice.

Once taken into custody a suspect has a right to silence, appointed

counsel if he/she cannot afford one, and right to reasonable bail

(unless bail is barred by law in capital cases).

The decision by the States prosecuting attorney, who has tremendous

discretion in these matters, to decide, first, whether the suspect should

be prosecuted, and, second, if so, for what charge he/she should be

prosecuted.

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Charging decisions can be determined through a preliminary hearing

or presentation of the case to a grand jury.

Once the State has leveled a specific charge, the suspect becomes the

accused who can then challenge the substance of the States case

through pretrial motions and statutory regulated discovery. Pretrial preparation includes informal exchanges and negotiations

between the defense attorney and prosecutor designed to protect the

accused from overcharging and prosecutorial misconduct.

The Sixth Amendment right to an attorney attaches at the initiation of the

adversarial process whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment. See: Brewer v. Williams, 430 U.S.

387, 398 (1977). At least after a formal charge has been filed an accused has

the absolute right to rely upon an attorney as a constitutional buffer between

him/her and the State. See: Maine v. Moulton, 474 U.S. 159, 176 (1985). Aformal charge transforms the suspect into an accused. See: Kirby v. Illinois,

406 U.S. 682, 689 (1972). The accused at this point in the adversarial

process finds himself faced with the prosecutorial forces of organized

society, and immersed in the intricacies of substantive and procedural

criminal law with the need for a skilled criminal defense attorney. Id.

In Texas, the adversarial criminal trial process commences when an

individual is arrested pursuant to a warrant obtained through a complaint

filed with a court. See: Barnhill v. State, 657 S.W.2d 131, 132(Tex.Crim.App. 1983). From this juncture forward, the accused enjoys the

right to assistance of counsel at every critical stage of the prosecution.

See: Upton v. State, 853 S.W.2d 548, 553 (Tex.App. 1993). A pretrial stage

is considered critical if the accused needs assistance in coping with legal

problems or assistance in meeting his adversary. See: Green v. State, 872

S.W.2d 717, 720 (Tex.Crim.App. 1994). Any post-indictment police

interrogation is certainly a critical stage. See: Westbrook v. State, 29

S.W.2d 103, 117 (Tex.Crim.App. 2000).

Texas Code of Criminal Procedure article 33.03 (Vernon 2003) provides thata criminal defendant has a statutory right to be present during his/her trial.

See: Routier v. State, 112 S.W.3d 554, 575 (Tex.Crim.App. 2003). The trial

begins when the jury is impaneled and sworn. See: Sanchez v. State, 138

S.W.3d 324, 329 (Tex.Crim.App. 2001). A trial is fundamentally unfair, and

constitutionally unacceptable, if the defendant is denied counsel at any

critical stage of his/her trial. See: United States v. Cronic, 446 U.S. 648, 659

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(1984). Whether a particular stage is critical is determined by counsels

usefulness at the time and whether the defendant lost any rights at that stage.

See: Garcia v. State, 97 S.W.3d 343, 347 (Tex.App.-Austin 2003, no pet.).

The following proceedings have been determined to be a critical stage in a

criminal case:

The taking of evidence on the defendants guilt.

Final summation or closing argument.

Preliminary hearings.

Arraignment.

Jury selection.

In camera hearing on the admissibility of evidence.

Punishment.

Appeal.

See: Medley v. State, 47 S.W.3d 17, 22 (Tex.App.-Amarillo 2000); Mempa

v. Rhay, 389 U.S. 128, 134 (1967).

John T. Floyd is committed to providing skilled advocacy in his criminal

defense work, and protection of the individual from the awesome powers of

the State. He stands ready to assist, and defend, anyone facing the

investigatory and prosecutorial powers of the State.