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I Want a Trial, But...

Posted by Jenna M. Fliszar, Esq. | Jan 09, 2014 | 0 Comments

This blog has several goals – to make people better advocates, to provide legal information in a way people can understand and use, and to make people more informed about the justice system. Sometimes, that will involve me writing a post just to discuss things I witness in court or challenges I run into. This is one of those posts.

My job as a criminal defense attorney is to ensure that my clients' Constitutional rights are always protected. Defense attorneys are tasked with making sure the government is following what the Founding Fathers intended for this country.  That's really the ultimate goal – protect the Constitution. It's a lofty goal, indeed, but a noble one. One of the most important rights we advance is the right to trial by jury.

Everybody in this country has a right to a trial by jury, thanks to the Sixth Amendment of the United States Constitution. In the state where I practice, Pennsylvania, this right is also extended through Article I, Section 6 of the Pennsylvania State Constitution. Although there are some exceptions where a person only has a right to a bench trial (trial in front of a judge rather than one in front of a jury), the fact still remains that if you're charged with a crime, you have a right to some sort of trial. But what happens when citizens are punished for exercising this right?

There's a distrubing trend I've noticed. People who exercise their right to a trial are then punished at the time of sentencing. It's been happening at an alarming rate, from what I can see. A defendant wants to exercise their right, they refuse to take a plea deal, take the case to trial, lose, and then at the time of sentencing, the fact that they went to trial is used against them. How? Well, the DA argues that the fact that the defendant took their case to trial rather than plead guilty is evidence that they aren't taking responsibility for their actions, therefore they should receive a stiffer sentence.

I've seen judges agree with this sentiment over and over again. Even in cases where the judge admits that the defendant had a viable defense, the act of requesting a trial is used against the defendant and a much harsher sentence is handed down. I've also seen the harsh sentence handed down when the defendant did everything he or she could to turn their life around – work a steady job, receive alcohol treatment, take care of their family, etc. All because the defendant exercised his constitutional right to a trial by jury.

So, where do we go from here? Should this dissuade you from taking cases to trial? The answer to that is, in my opinion, simple – absolutely not!! It's important to do two things when facing this issue. First, determine if you have a valid legal defense, something you can hang your hat on. If you don't, chances are the threat of a harsher sentence isn't worth the risk. Second, get the client involved. Explain your strategy, the legal defense and how strong you think it is, and make sure they know that if they go to trial and lose, there's that possibility of a harsher sentence. You shouldn't try to scare them, but it's important they know all the pros and cons of going to trial so they can make an informed, educated decision. At the end of the day, it's the client's life, and they need to make the ultimate decision whether or not they want to exercise their rights.

About the Author

Jenna M. Fliszar, Esq.

Bar Admissions Pennsylvania United States District Court for the Middle District of Pennsylvania Additional Training Practitioner, Standardized Field Sobriety Testing Instructor, Standardized Field Sobriety Testing Drug Recognition Expert Training Forensic Chromatography Training Ad...


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