Advisement of Rights

An arrested person must be brought before a judge and advised of certain important legal rights and matters within a reasonable time after being taken into custody. The person will be advised of the charges for which he/she is under investigation, of the right to have bond set, to be represented by counsel, among others. In most instances the judge will set bond and bond conditions.

Below are explanations of some of the most precious and important fundament constitutional rights to which any person accused of a crime is entitled:

Right to Remain Silent

The police are not permitted to force one under investigation to speak with them in an interrogation setting. Once under arrest, and before the police begin asking questions about a suspected crime, they must provide an advisement of the right to remain silent and the right to speak with a lawyer before deciding whether to answer questions.  If police questioning begins after an arrest and without this well-known Miranda Advisement and subsequent waiver (giving up) of rights, the answers given may ultimately be inadmissible at trial, even if the answers are important prosecution evidence. However, a failure to advise of these rights does not guarantee that the case will be dismissed, nor are the police required to read rights to someone they do not intend to question who is not under arrest. Whether one is actually under arrest at the time of questioning is not always a simple question to resolve. The Constitution guarantees that no individual under a cloud of suspicion or accusation may be compelled to produce evidence again one’s self.  To the contrary, it is the prosecutions burden attempt to produce evidence to prove guilt beyond a reasonable doubt, during which time the accused person is to be presumed innocent.

Right to be Represented by Competent Counsel

The precious rights of one accused of committing a crime are of questionable value without representation by a competent lawyer experienced in criminal defense. Most individuals accused of crimes for which a jail sentence may be imposed are entitled to competent representation, and those that cannot afford to hire private counsel may be entitled to be represented at no charge by the Office of the Colorado State Public Defender. Whether by a lawyer in private practice or a public defender, representation should be secured in order to ensure that these precious constitutional rights are meaningfully afforded to a criminally accused person.

Right to a Trial

In order to convict at trial, the prosecutor must prove guilt beyond a reasonable doubt. Trial may be to a judge or a jury. Most cases do not go to trial, but are resolved through negotiation and compromise. However, some cases should and do go to trial. Either way, from the beginning of the case, the most important question is whether the prosecutor will have enough evidence to prove guilt beyond a reasonable doubt. The weaker the proof, the stronger is the accused person’s bargaining power to reach an acceptable resolution without the stress, risk, uncertainty, and expense of going to trial.

Right to be Presumed Innocent

At trial the prosecutor has the burden at trial to prove guilt beyond a reasonable doubt.  Only after all the evidence, statements of the lawyers, and instructions of law have been presented should the determination of whether the case was proven beyond a reasonable doubt begin. The presumption of innocence is to remain throughout the trial and leading up to deliberations. The defense attorney must do everything possible throughout every stage of the trial to make sure that the fact finder does not cast aside the presumption of innocence.


Right to Require the Prosecution Attempt to Prove All Parts of a Particular Charge Beyond a Reasonable Doubt

In order get obtain a conviction at trial, the prosecution must prove each part or "element" of a charge beyond a reasonable doubt. Because the "burden of proof" is always upon the prosecution, the accused person is never required to produce evidence in order to be found not guilty. At all times the judge or jury's focus is to be on the quality of the prosecution's evidence, measured by the requirement of proof beyond a reasonable doubt. No conviction can occur unless the judge or each jury member is convinced guilt beyond a reasonable doubt. A verdict of Not Guilty is the same a judge or jury stating the the prosecution has not proven each and every element of a charge beyond a reasonable doubt.

Right to a Unanimous Verdict

Every juror must determine that the prosecution has or has not proven a particular charge beyond a reasonable doubt. If all jurors are unable to agree on a verdict now matter how long they deliberate, the jury is considered to be hopelessly deadlocked, a "hung jury." In this event, the judge declares a mistrial, and the prosecution is allowed to again bring the accused person to trial at a future date before a different jury.

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