When an attorney represents a defendant in a criminal case, there is a division of authority after the two decide on the objectives of the representation. Sometimes, the two mutually decide to pursue a plea bargain based on the available evidence; sometimes, they decide to make the government prove its case beyond a reasonable doubt. These are serious decisions.
In any representation, the defendant makes various decisions, and the attorney makes other decisions. These decisions are clearly defined. The decisions made by the attorney are called “legal decisions.” On the other hand, the defendant makes certain fundamental decisions.
Defendant Decisions
The defendant makes the following decisions:
(a) trial or enter a plea,
(b) jury or non-jury (with government approval),
(c) testify,
(d) forbid the attorney from calling a specific witness in his defense,
(e) run an affirmative defense that admits guilt or
(f) appeal.
See Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S.Ct. 3308 (1983) (“It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . .”); Brookhart v. Janis, 384 U.S. 1, 16 L. Ed. 2d 314, 86 S.Ct. 1245 (1966)(stating that although an attorney can make tactical decisions as to how to run a trial, the Due Process Clause does not permit an attorney to admit facts that amount to a guilty plea without the client’s consent); and McCoy v. Louisiana, 584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018) (A defendant has the right to insist that counsel refrain from admitting guilt during the guilt-phase of a capital murder trial, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty; guaranteeing a defendant the right to have the assistance of counsel for his defense, the Sixth Amendment so demands).
Trial/Plead
The defendant decides whether to proceed to trial, enter a guilty plea, and thereby resolving the case. The attorney may not make that decision for the defendant. Even if the attorney thinks the decision to go to trial is unsound or a bad idea, the attorney is bound by it, and vice versa in terms of a plea bargain. Remember, the Constitution guarantees a jury trial; no constitutional right to a plea bargain exists.
There are plenty of times when an attorney thinks accepting a plea bargain is a bad idea, but he cannot override the defendant. The defendant has a right to change his not guilty plea to guilty and resolve his case. There are also plenty of times when the attorney thinks going to trial is way too risky when there is a reasonable plea offer on the table. Regardless, the final decision is the defendant’s.
Jury trial versus non-jury trial
A non-jury trial is a criminal trial conducted only by a judge without a jury. The default position is a jury trial. A non-jury trial begins for double jeopardy purposes when the first witness is called and sworn in. Only the defendant can decide to proceed to trial with the judge. There is one caveat to this decision: the government must also agree to waive the jury. If the government objects, then the matter is tried before a jury. The waiver of the jury must be written.
Testify or not testify
A defendant has an absolute right to remain silent and make the government carry its burden by proving its case against him beyond a reasonable doubt. The defendant also has an absolute right to be a witness in his defense. The attorney cannot make this decision. This is the law.
Sometimes, the defendant’s testimony is necessary to prove specific affirmative defenses, like consent, renunciation, duress, necessity, or insanity. Because these affirmative defenses deal with the defendant’s statement of mind, the defendant’s testimony is usually necessary to provide evidence to support that defense.
Many factors go into testifying, and the decision should not be made lightly. For instance, the defendant has a prior record and must admit to felony or misdemeanor crimes of dishonesty. At some other time, the defendant said something different and will be confronted with the previous inconsistent statement. On the other hand, the defendant does not speak well, gets nervous, and will be cross-examined. There are many factors to consider.
Regardless, the defendant has the final say. Even if the attorney suggests that the defendant should testify, the defendant does not have to, and vice versa. If the attorney thinks it’s a bad idea for the defendant to testify, the defendant has the right to take the stand in his defense if the defendant testifies. The attorney does not make this decision contrary to popular belief and media reports.
Forbid a favorable witness from being called by the defense
The attorney cannot override a defendant’s wish not to call a specific witness. Usually, the attorney decides which witnesses to call at trial or how to question those witnesses because these are legal decisions. In certain instances, the defendant can bar the attorney from calling a favorable witness for personal reasons. For example, the defendant’s mother witnessed the event and can testify that the other person was the aggressor. The defendant told his attorney that he did not want his mother involved and not to call her as a witness. However, the defendant cannot limit prosecution witnesses.
Run an Affirmative Defense
An affirmative defense admits the offense but claims a justification or excuse for the acts. For instance, in a battery case, the defendant claims that the fight was mutual combat, and both parties consented to it. Consent means, “I was in the fight, but he and I agreed to engage in this fight.” As a result of the consent, I am justified in my behavior and not guilty of committing criminal battery. An attorney may not admit the defendant’s guilt without the defendant’s consent because, in doing so, the attorney would violate the Sixth Amendment’s right to trial.
Appeal
The defendant decides to take a direct appeal. The attorney cannot make this decision.
The attorney makes the remainder of the legal decisions, even over the defendant’s strident objections. For instance, a defendant may object to the trial counsel’s request for a continuance, but the trial counsel makes that decision to prepare for trial. McKenzie v. State, 29 So.3d 272 (Fla. 2010); Knight v. State, 211 So.3d 1 (Fla. 2016). Decisions like what to investigate, what motions to file, who to depose, what evidence to present at trial, what arguments to advance …etc. are entirely up to the attorney. While it is “best practices” to have the defendant’s consent and collaboration on these decisions, it is not necessary because the attorney has the right to make various “strategic decisions.”
A good defense attorney will discuss these decisions with the defendant and provide the best information possible based on what is known at the time of the decision. The more skilled and experienced attorney does his best to break these legal concepts down to snackable bites for the defendant to completely understand the benefits and risks of any decision. Usually, defendants make more informed decisions with better, more experienced and skilled attorneys. This is why the choice of defense attorney matters in every case, trial, appeal, or post-conviction. The criminal defense attorney should get paid for their skill, ability, knowledge, and passion. Like everyone else, the criminal defense attorney does not work for free and should command a fee commensurate with their worth. Make no mistake, a good criminal defense attorney is worth their weight in gold and may make the difference in the ultimate outcome of your case.
Anthony Candela is the Trial Dog and a four-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and exclusively handles criminal trials and appeals in Florida and federal court. He has been representing people charged with crimes for the past 25 years. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. He has been handling criminal matters since 1999. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. He is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal in the federal system. #callcandela #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 24-03 Decisions, Decisions