The decision to go to trial is a significant one that a defendant should make only after consultation with his attorney. A trial carries with it a lot of risk. Decisions of juries cannot be predicted and can seem illogical. Further, the judge can sentence a defendant more harshly following a jury trial than he would as part of a plea bargain. Richardson v. State, 305 Ga. App. 363 (2010). Attorneys who explain these risks to a client should not necessarily be viewed as trying to make the client take a plea to avoid more work for the attorney. Those attorneys who have fought for clients during a trial understand the dangers and may simply want the client to seriously consider the plea options available to the defendant.
Trial Rights
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462 (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const. of Ga. 1983, Art. I, Sec. I, Par. XI (a); Purvis v. State, 288 Ga. 865 (2011). The right to a public trial "may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Presley v. Georgia, 130 S. Ct. 721 (2010); 1983 Ga. Const. Art. I, § I, Para. XII.
During a trial in a court of any case in which the evidence is vulgar and obscene or relates to the improper acts of the sexes, and tends to debauch the morals of the young, the judge shall have the right in his discretion and on his own motion, or on motion of a party or his attorney, to hear and try the case after clearing the courtroom of all or any portion of the audience. Pate v. State, 315 Ga. App. 205 (2012); OCGA § 17-8-53. Further, in the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the judge shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters. OCGA § 17-8-54. The partial closure permitted under OCGA § 17-8-54 does not violate a defendant's Sixth Amendment right to a public trial. Delgado v. State, 287 Ga. App. 273 (2007).
A defendant also has a right to be present at his trial as well as any stage of the proceedings that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure. Wedel v. State, A14 A0622; Adams v. State, 316 Ga. 1 (2012). A critical stage in a criminal case is one in which the defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some way. Huff v. State, 274 Ga, 110 (2001). This does not include instances where the defendant's presence would be useless. Lyde v. State, 311 Ga. App. 512 (2011). This right may be waived if a defendant later fails to object to earlier proceedings in his absence. Jackson v. State, 278 Ga. 235 (2004). This does not include the right to be present at bench conferences on legal and scheduling issues. Zamora v, State, 291 Ga. 512 (2012). The denial of the right to be present is presumed to be prejudicial. Peterson v. State, 284 Ga. 275 (2008).
If a defendant is in jail, his family or lawyer should make sure adequate clothes are provided for him for trial. A defendant, while in the presence of the jury, should be free of indicators of guilt such as wearing shackles or prison clothes, being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. Daniels v. State, 310 Ga. App. 541 (2011). However, the judge has the duty to preserve and enforce order and to prevent interruption, disturbance, or hindrance to the proceedings. Therefore, where the judge is familiar with the defendant's background of violent and disruptive behavior, it is within the judge's discretion as to the necessity and extent of restraint to be imposed upon a disorderly defendant to prevent disruption of court proceedings. The judge has discretion in requiring a defendant to be handcuffed or shackled for security reasons. Weldon v. State, 327 Ga. App. 862 (2014); Mapp v. State, 197 Ga. App. 7 (1990); Dennis v. State, 170 Ga. App. 630 (1984).
A defendant can waive the right to be tried in front of a jury and ask to instead receive a trial before the judge. This is called a bench trial. The State must agree to a bench trial. Stripling v. State, 289 Ga. 370 (2011); Zigan v. State, 281 Ga. 415 (2006). The right to a jury trial is one of those fundamental rights that a defendant must personally, knowingly, and voluntarily waive. Walden v. State, 291 Ga. 260 (2012); Ealey v. State, 310 Ga. App. 893 (2011). The State has the burden of showing that a defendant made a knowing, voluntary, and intelligent waiver of the right to a jury trial. Brown v. State, 277 Ga. 573 (2004). The waiver does not need to be in any particular form as long as the judge inquires on the record to ensure the waiver is proper. When there is a bench trial, it is presumed that the judge separates admissible evidence from inadmissible evidence and considers only admissible evidence in reaching a decision. Futch v. State, 316 Ga. App. 376 (2012); In the Interest of R.W., 315 Ga. App. 227 (2012); In the Interest of I.M.W., 313 Ga. App. 624 (2012); Watson v. State, 274 Ga. 689 (2002).
A defendant must be competent to stand trial. "Competency involves a defendant's mental state at the time of trial." Wadley v. State, 295 Ga. App. 556 (2009). Every person is presumed to be competent to stand trial. O.C.G.A. § 16-2-31. Unless there is evidence raising the issue of competency the judge does not have to take further action. A defendant can seek review of his mental competency. Sims v. State, 279 Ga. 389 (2005). However, if there is information to raise a doubt about competency the judge is required to conduct a trial to determine the defendant's mental competency. Powers v. State, 314 Ga. App. 733 (2012); O.C.G.A. § 17-7-130. The threshold for competency is easily met in most cases. A defendant is competent if he is capable at the time of the trial of understanding the nature of the proceedings going on against him, comprehends his own condition in reference to such proceedings, and is capable of rendering his attorney such assistance as a proper defense to the indictment against him demands. Page v. State, 313 Ga. App. 691 (2012). The factors to consider in determining a defendant's ability to assist in his defense include whether the defendant can adequately consult with others, knows the names and functions of those involved with the case, and reasonably understands the rules., the specific charges, the penalties, and the consequences of the proceedings. Tiegreen v. State, 314 Ga. App. 860 (2012).
An indigent defendant does not, however, have a constitutional right to "choose a psychiatrist of his own liking or to receive funds to hire his own." Page
v. State, 313 Ga. App. 691 (2012); Callaway v. State, 208 Ga. App. 508 (1993). A defendant also does not have the right to the presence of counsel or to have his Miranda rights repeated to him during an interview with a state psychologist. Walker v. State, 290 Ga. 467 (2012). Once competency has been determined, "the appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial." Sims v. State, 279 Ga. 389 (2005). Placing the burden on the defendant to prove incompetency is consistent with the principles of due process. Traylor v. State, 280 Ga. 400 (2006).
The right to be present and competent includes the right of non-English speaking defendants to the assistance of an interpreter. Ling v. State, 288 Ga. 299 (2010).