Posted September 16, 2013 02:29 pm - Updated September 16, 2013 02:35 pm

Defendants' Rights: State v. Federal

You might remember me. I’m the guy with the funny last name who in a previous life was an education reporter for The Augusta Chronicle. I left about four years ago, and since then a lot has happened in my life. I got married. Our first child was born. And, I graduated from law school and passed the Georgia Bar Exam.

Well, you can take the Cajun out of the bayou, but you can’t take the bayou out of the Cajun. In much the same way, you can take the reporter out of the newsroom, but you can’t take the newsroom out of the reporter. So, I am returning to my journalism roots. Let me officially introduce you to “Know Your Rights,” a blog designed to inform and educate you about your legal rights.


Each edition of the blog will focus on a different legal topic. I promise to avoid Latin phrases, legalese and jargon, but instead offer a conversational laid back approach while at the same time leaving you a bit better informed about the law. The main way I plan to do this is through Q & A’s with legal experts.


What can you expect in future editions of Know Your Rights? Peaking into my crystal ball, I see blogs about being pulled over on suspicion of DUI, the ins and outs of “Obamacare,” appealing your property tax assessment and much more.


So, without further ado, let’s get started with some basics about criminal justice and how your rights differ in state and federal courts…


Know Your Rights posed questions to Prof. Timothy Saviello of Atlanta’s John Marshall Law School. Prof. Saviello’s career has focused on criminal law and he has practiced extensively in both state and federal courts. At John Marshall, he teaches criminal law, criminal procedure and evidence. He has also served on the faculty of the Southern Public Defender Training Center since it was created in 2007.

Know Your Rights: In general, what is the difference between state and federal court?

Prof. Timothy Saviello: It is hard to generalize the differences because there are so many.  For people unfamiliar with the criminal justice system in general, I'd summarize the very basic differences in laymen terms as follows:

      STATE COURT                                             

  • Prosecutor is a locally-elected District Attorney
  • Judges are locally-elected officials and can be voted out of office
  • Deals with what are commonly called “Street Crimes”.  These include most violent crimes involving individuals:  murders, rapes, robberies, assaults, batteries
  • Georgia has parole, so that a convicted felon has the opportunity to reduce the term of incarceration through good behavior while in prison and be released early on parole
  • Private attorneys charge less for representation in State courts than they do for representation in Federal Court



  • Prosecutor is nominated by the US President, confirmed by US Congress and holds the office as long as the sitting president allows it.
  • Judges are nominated by the US President, and once confirmed by the US Congress serve a life-term and can only be removed by impeachment.
  • Deal with criminal organizations like gangs.  More likely to prosecute the organization and its members rather than individuals for gang-related activity. More likely to prosecute large-scale white collar crime.  More likely to prosecute bank robberies.
  • No Parole, so a convicted felon must serve at least 85% of the original term of incarceration before being released.
  • Private attorneys charge more for representation in Federal Court than they do for representation in State Court.

KYR: Can I be charged in both state and federal court for the same crime?

Saviello: Yes in Georgia.  While the Double Jeopardy Clause of the Fifth Amendment to the US Constitution prohibits a person from being twice placed in jeopardy for the same crime, the US Supreme Court has determined that the Federal Government is a different sovereignty that the state government, and thus you can be charged in both Georgia State Courts and Federal Court for the same crime.  However, if you are convicted in Federal Court, you cannot be later tried in a Georgia State Court for that same crime.  BUT, if you are convicted in a Georgia State Court first, you CAN be later convicted in Federal Court for the same crime.

KYR: How would my rights differ depending on which court system I was in?

Saviello: Your rights in State Court include all rights afforded a person by the US Constitution and the State Constitution.  Your rights in Federal Court only include those afforded by the US Constitution.  Georgia’s constitution, like many states, actually provides slightly greater protections to charged individuals than the US Constitution.

KYR: Is the right to an attorney the same in state and federal court? What if I can’t afford an attorney?

Saviello: Yes, a person’s right to an attorney when they are approached by law enforcement officers is the same in both State and Federal Courts.  If a person cannot afford an attorney, they are entitled to have one appointed to represent them, and that attorney is paid for by the State.

That payment does NOT come from the prosecutor, but generally from the County Government in which the criminal charges appear.

If a person feels they need an attorney to assist them in their interactions with law enforcement, they should always immediately and clearly ask for one, so that there is no confusion about their wish to have that assistance.  Generally speaking, once they ask for an attorney, law enforcement officers must stop any interrogation or questioning until an attorney has been appointed or hired, has had a chance to discuss the issue with their new client, and the client is able to make a knowing and intelligent decision agreeing to talk to law enforcement.

KYR: What are the best resources to learn more about my rights?


And while many people may not like some of the issues the ACLU champions, they are a great resource for an individual to become familiar with their individual rights and the criminal justice system.


Know Your Rights is for informational purposes only. It is not legal advice. To obtain legal advice, speak with an attorney. The law varies from state to state and outcomes of individual legal matters can vary depending on the particular facts and circumstances. This blog does not create an attorney-client relationship between either the author of this blog or any attorney included in this blog and any reader of this blog.