Waiver of Constitutional Rights in a Plea Agreement

When a defendant pleads guilty to any crime in the State of Indiana, they either must be informed in writing, in person, or by video of the constitutional rights they waive by pleading guilty. That’s an important step in someone taking responsibility for their actions, as the United States and Indiana Constitutions demand a complete understanding of what you are entitled to in your defense. And, thus, when you plead guilty, you are waiving the right to employ those guarantees in your defense that are afforded to you by the Indiana and United States Constitutions.

Every single county in the State of Indiana has a different means by which to inform people of their constitutional rights. In an initial hearing or arraignment on charges, a judge will inform the defendant of what they are entitled to as part of their defense. In a sentencing hearing, the sentencing court may ask the defendant if they remember those rights. If they do, they may not recite them in sentencing. More commonly, however, judges will specifically address a defendant’s rights in person, to the group as a whole, or in a pre-recorded video. Equally as likely, many plea agreements in the state have the constitutional guarantees listed very specifically on the plea agreement itself — and the defendant must initial next to each right listed in the plea. Regardless, the law requires the defendant to fully acknowledge their constitutional rights on record, and then in the same hearing, knowingly waive those rights. Your criminal attorney can help you make a more informed decision.

Constitutional Rights You Can Waive

But, what are the constitutional rights that you typically waive in a criminal sentencing hearing? They are as follows:

  • The right to a public and speedy trial by jury. While juries are automatically assigned to felony cases, misdemeanor cases are actually initially set as bench trials in front of a judge. If you want a jury trial (which you are entitled to if requested in a timely fashion), you must request one prior to ten (10) days before your first bench trial hearing. All trials, unless juvenile or confidentially filed, are public hearings where anybody can attend.
  • The right to a speedy trial by jury. You have the right to file a request to have a speedy trial by jury. Typically, that request must be made in writing, and the court must set your case for trial within 70 days (with some exceptions). However, the defendant usually must be incarcerated to have it set so quickly.
  • The right to not testify against yourself, or the right against self– Just as it sounds, you cannot be forced to testify against yourself, and a jury or judge cannot hold it against you if you chose to remain silent.
  • The right to see, hear, face, and crossexamine witnesses against you. In any trial, you are guaranteed the right to face people accusing you of a crime and for you, yourself, or your attorney to see them, challenge them, and cross-examine them in person.
  • The right to compel people through subpoena power of the court to testify on your behalf at no expense to you. This means you can force anyone, anywhere to testify on your behalf, and so long as the court has jurisdiction over them, they will be required to come to court and you don’t have to pay a dime for it.
  • The right for the state to prove you guilty beyond a reasonable doubt and be presumed innocent. This applies to every single element of the offense. The state has the burden to prove you guilty in a criminal case. You have no burden at all.
  • The right to have an attorney appointed to you at no expense to you if you qualify. If you cannot afford an attorney (and each county has differing guidelines for this), you can be given an attorney at little to no expense to you at all stages of trial or appeal.
  • The right to appeal your sentence if convicted by the court, including challenging the sentence imposed by the court on any open term. If you exercise your right to trial, and you lose, you have the right to appeal that conviction or any finding of the court on any pre-trial, during trial, or post-trial motions. This appeal right also applies to challenging sentencing ranges if the court made the determination without a plea agreement or if there was an open term in a plea that the court ultimately makes the determination.

These are the typical constitutional rights that a judge MUST make sure you understand prior to pleading guilty. It is important that you fully understand each and every one of these rights. Why? Because once you waive these rights by pleading guilty, you cannot go back in time and undo the result. That’s why it is incredibly important to discuss these rights with an attorney. Any seasoned criminal attorney can fully describe and explain each and every one of these rights.

Parts of a Plea Agreement

There are other parts of a plea agreement that many times are included in the verbiage of the plea, such as (but not limited to): (1) an admission to the facts, (2) a knowing understanding of the charges and penalty ranges, (3) that you have reviewed the plea with counsel and your questions were answered, (4) waiving the right to appeal and any post-conviction release, (5) waiving the right to modify the sentence, (6) waiving any civil penalties, (7) acknowledgement that you are entering into the agreement freely and voluntarily and no promises, threats, or coercion were used to force you to plead, (8) that you are satisfied with your attorney, (9) that the plea is based on the criminal history that everyone knows, (10) that sentences can be concurrent or consecutive, (11) ramifications of additional penalties if you were out on bond, parole, or probation for another offense, (12) potential sentencing enhancements or penalties, (13) whether the sentence if suspendible or not, (14) any immigration consequences, and (15) an acknowledgement that this will part of your permanent criminal history and made public (and may be sent to the BMV if it is a driving offense).

Once again, if it important to have an open conversation with your attorney and ask questions about each and every one of these rights or acknowledgements.  Should you or your loved one need an attorney for any criminal proceeding, please do not hesitate to contact the experienced Indianapolis Criminal Lawyers at Banks & Brower, today, 24/7/365. 3178700019 or by email at info@banksbrower.com.