Episode #8
Who Decides at Trial? 5 Choices Only a Texas Criminal Defendant Can Make
These Choices Only a Defendant Makes Who actually gets to make the big decisions in a Texas criminal case—the defendant or the defense lawyer? A criminal defense attorney controls much of the strategy involved in trying a case, but some decisions are so fundamental that they belong to the defendant alone. In this episode of Andrew & Andrew on Texas Criminal Defense , Andrew Herreth and Andrew Decker break down the line between client autonomy and attorney trial strategy . They discuss who decides whether to plead guilty, whether to accept a plea bargain, whether to waive a jury, whether the defendant will testify, and whether a judge or jury should assess punishment. The discussion also covers one of the most dangerous areas for trial lawyers: what happens when a client wants to testify and the lawyer thinks doing so is a terrible idea? The answer isn't simply, "You're not testifying." The defendant has a constitutional right to testify. Andrew and Andrew discuss Rock v. Arkansas , the importance of making a record of the client's decision, and practical steps Texas defense lawyers can take after the State rests. They also examine McCoy v. Louisiana and the limits of attorney control over trial strategy. A lawyer may generally control tactical decisions, but counsel cannot override a defendant's express decision to maintain innocence by conceding guilt. Finally, the episode turns to punishment elections and the practical considerations involved in deciding whether a judge or jury should determine punishment. In This Episode Andrew and Andrew discuss: Which decisions belong exclusively to a criminal defendant The difference between client decisions and attorney trial strategy Who decides whether a defendant pleads guilty Felony versus misdemeanor plea procedures in Texas Whether an attorney can accept a plea bargain for a client Counseling a client about a favorable plea offer The defendant's constitutional right to a jury trial Waiving a jury and proceeding before a judge The defendant's right to remain silent The equally important constitutional right to testify What to do when your client wants to testify against your advice Why defense counsel should put the testimony decision on the record Handling a defendant's prior criminal history when the client testifies Electing judge or jury for punishment How punishment elections can affect voir dire Why knowing the sentencing tendencies of the trial judge matters Which strategic decisions generally belong to defense counsel McCoy v. Louisiana and a defendant's right to maintain innocence Ineffective-assistance concerns when counsel interferes with a defendant's fundamental rights
