Chapter 10 The Criminal Trial

Chapter 10Chapter 10The Criminal TrialThe Criminal Trial

Adversary ProceedingsAdversary Proceedings

The trial in the USA, based on common law The trial in the USA, based on common law principles, is an adversary proceedingsprinciples, is an adversary proceedings

Each side – prosecution and defense – is entitled Each side – prosecution and defense – is entitled to present the best possible case for its side on to present the best possible case for its side on a “level playing field.”a “level playing field.”

The side which makes the most convincing argument The side which makes the most convincing argument before the jury or judge wins.before the jury or judge wins.

It is the job of the judge to make sure a level It is the job of the judge to make sure a level playing field exists, or that due process is playing field exists, or that due process is provided the defendant.provided the defendant.

If due process is followed, the decision is If due process is followed, the decision is correct and just (even if there are doubts about correct and just (even if there are doubts about the substantive guilt or innocence of the the substantive guilt or innocence of the defendant) .defendant) .

Civil Rights During Civil Rights During TrialTrial

The right to be competent at trialThe right to be competent at trial– Defendants must be mentally competent to Defendants must be mentally competent to understand the nature and extent of understand the nature and extent of legal proceedingslegal proceedings

– Courts may force defendants to receive Courts may force defendants to receive treatment so they can be triedtreatment so they can be tried Important governmental interest must be at Important governmental interest must be at stakestake

Must significantly further state interestsMust significantly further state interests Other less intrusive treatments unlikely to Other less intrusive treatments unlikely to achieve substantially the same resultsachieve substantially the same results

Must be medically appropriateMust be medically appropriate

Civil Rights During Civil Rights During Trial (cont.)Trial (cont.)

The right to confront witnessesThe right to confront witnesses– Provide for a control over hearsay Provide for a control over hearsay evidence and allows the authenticity of evidence and allows the authenticity of witnesses to be challengedwitnesses to be challenged

– Helps the accused in preparation of a Helps the accused in preparation of a defense to know who will present defense to know who will present testimony for the state –discoverytestimony for the state –discovery

– Does not necessarily mean a face-to-face Does not necessarily mean a face-to-face confrontationconfrontation Court may use alternative methods to protect Court may use alternative methods to protect victims or other witnesses from trauma (e.g., victims or other witnesses from trauma (e.g., child who has been sexually abused)child who has been sexually abused)


The right to a jury trial The right to a jury trial – Applies to any crime with a Applies to any crime with a punishment of 6 months or morepunishment of 6 months or more

– Constitution does not require a 12 Constitution does not require a 12 person jury, smaller juries may be person jury, smaller juries may be permittedpermitted

– The 6The 6thth and 14 and 14thth Amendments do not Amendments do not mandate a unanimous verdict in mandate a unanimous verdict in non-capital casesnon-capital cases


Right to counsel at trialRight to counsel at trial May choose to represent self (May choose to represent self (pro sepro se))

– Waiver must be made knowingly and Waiver must be made knowingly and intelligentlyintelligently

– Court may refuse to allow if defendant Court may refuse to allow if defendant not believed competent to waive rightnot believed competent to waive right

– No right to self-representation in No right to self-representation in appealsappeals

If unable to pay for a defense lawyer, If unable to pay for a defense lawyer, state must provide onestate must provide one

Civil Rights During Civil Rights During Trial (cont.) Trial (cont.)

Public TrialsPublic Trials– 66thth Amendment guarantees a speedy and public trial Amendment guarantees a speedy and public trial– Designed to ensure fairness of the proceedingsDesigned to ensure fairness of the proceedings– Both the press and public may attend trials, even Both the press and public may attend trials, even in sensitive casesin sensitive cases

– Courts may be closed to public if involves Courts may be closed to public if involves national security interestsnational security interests

– Issue: cameras in courtIssue: cameras in court Are these a good idea or will they interfere in the Are these a good idea or will they interfere in the conduct of the trial – legal actors will play to the conduct of the trial – legal actors will play to the cameracamera

Up to the judge, in most casesUp to the judge, in most cases Defendant can not object to use of cameras in the Defendant can not object to use of cameras in the courtroomcourtroom


The right to a speedy trialThe right to a speedy trial– No set time which defines the termNo set time which defines the term– Supreme Court considers a fundamental Supreme Court considers a fundamental rightright Improves the credibility of the trialImproves the credibility of the trial Avoids lengthy pretrial detentionsAvoids lengthy pretrial detentions Avoids extensive pretrial publicity and Avoids extensive pretrial publicity and other conduct that may interfere with other conduct that may interfere with fair trialfair trial

Delay may adversely affect defendant’s Delay may adversely affect defendant’s ability to defend themselvesability to defend themselves


Pretrial publicityPretrial publicity– Judge may not prohibit press from Judge may not prohibit press from reporting details of a crimereporting details of a crime

– Hearings may be closed to public Hearings may be closed to public if there is a substantial if there is a substantial probability that the defendant’s probability that the defendant’s right to a fair trial would be right to a fair trial would be prejudiced by publicity or trial prejudiced by publicity or trial involves certain people or crimesinvolves certain people or crimes

Standards of Proof Standards of Proof


Proof beyond a reasonable doubtProof beyond a reasonable doubt– Standard of proof required to convict a Standard of proof required to convict a defendantdefendant

– Beyond reasonable doubt does not mean Beyond reasonable doubt does not mean certainty but close to itcertainty but close to it

– Defendants are presumed innocent until Defendants are presumed innocent until proven guiltyproven guilty

– Reduces risk of convictions based on Reduces risk of convictions based on factual errorsfactual errors

– Underlies our belief that it is better to Underlies our belief that it is better to release a guilty person than convict an release a guilty person than convict an innocent oneinnocent one

The Trial ProcessThe Trial Process

Formal process conducted in a Formal process conducted in a specific and orderly fashion specific and orderly fashion according to rules of criminal according to rules of criminal lawlaw

Structured adversary proceedingStructured adversary proceeding Each side seeks to present its Each side seeks to present its case favorablycase favorably

Steps in Steps in the Trial the Trial ProcessProcess

The Trial Process The Trial Process (cont.) (cont.)

Jury selection: petite, petty or trial Jury selection: petite, petty or trial juryjury

Constitutional right to an “impartial Constitutional right to an “impartial jury of the state” in most trialsjury of the state” in most trials

Selecting a jury: Selecting a jury: venirevenire and and voir direvoir dire– Jurors randomly selected from voter Jurors randomly selected from voter registration or licensing lists (called a registration or licensing lists (called a ““venirevenire”). Few states impose ”). Few states impose qualifications on jurorsqualifications on jurors

– Usually prohibit convicted felons from Usually prohibit convicted felons from servingserving


– Voir DireVoir Dire The actual selection of jurors and The actual selection of jurors and alternates for the trialalternates for the trial– (Alternates in case a juror is disqualified or (Alternates in case a juror is disqualified or falls ill)falls ill)

Colloquial French expression for “to tell Colloquial French expression for “to tell the truth”the truth”

Questioned by prosecutor, defense, and Questioned by prosecutor, defense, and sometimes the judge about their sometimes the judge about their background, occupations, residences, and background, occupations, residences, and knowledge or interest in the caseknowledge or interest in the case

Fill out questionnaires and/or in asked Fill out questionnaires and/or in asked in personin person

The Trial Process The Trial Process (cont.)(cont.)

Challenges for causeChallenges for cause– During During voir direvoir dire prosecution or prosecution or defense show why potential juror defense show why potential juror cannot be impartial (has made up cannot be impartial (has made up mind, knows the defendant mind, knows the defendant personally, unwilling to say that personally, unwilling to say that can be impartial)can be impartial)

– No limit to the number of No limit to the number of prospective jurors who can be prospective jurors who can be removed for causeremoved for cause


Peremptory challengesPeremptory challenges– Prosecution and defense may excuse Prosecution and defense may excuse prospective jurors without prospective jurors without providing a reason or “cause”providing a reason or “cause”

– Number of challenges are limited – Number of challenges are limited – varies by jurisdictionvaries by jurisdiction

– Cannot be used to systematically Cannot be used to systematically eliminate jurors on the basis of eliminate jurors on the basis of race, ethnicity, or genderrace, ethnicity, or gender

Informal Participants in Informal Participants in Jury SelectionJury Selection

Jury consultants: experts in how Jury consultants: experts in how jurors behave and vote jurors behave and vote – Goal: getting the right kind of people Goal: getting the right kind of people for your side on the juryfor your side on the jury Used by prosecutors and defense in serious Used by prosecutors and defense in serious casescases

Costly and only available for the well-offCostly and only available for the well-off

– Knowledge baseKnowledge base Research on how certain kind of people (age, Research on how certain kind of people (age, race, gender, occupation) have voted in race, gender, occupation) have voted in similar cases to convict or find not guiltysimilar cases to convict or find not guilty

Informal Participants Informal Participants (cont.)(cont.)

– Parallel juries during trialsParallel juries during trials Select a jury which mirrors the real Select a jury which mirrors the real jury and give them the trial jury and give them the trial transcript after each day to see how transcript after each day to see how they think the case is going (as a they think the case is going (as a hint on how the real jury might be hint on how the real jury might be thinking) thinking)

Can guide arguments, selection of Can guide arguments, selection of witnesses, whether defendant will witnesses, whether defendant will take the stand, closing statements take the stand, closing statements


Opening StatementsOpening Statements– Prosecutor, then defense makes an Prosecutor, then defense makes an opening statementopening statement

– Statements are designed to provide an Statements are designed to provide an overview of each sides case to the overview of each sides case to the juryjury

– Must not contain prejudicial remarks, Must not contain prejudicial remarks, inflammatory statements, or mention inflammatory statements, or mention irrelevant factsirrelevant facts

– Tend to depict the defendant in very Tend to depict the defendant in very different termsdifferent terms


Witness TestimonyWitness Testimony– Direct examination: the questioning of Direct examination: the questioning of one’s own (prosecution or defense) witness one’s own (prosecution or defense) witness during a trialduring a trial

– Cross examination: interrogation of Cross examination: interrogation of opposing sides’ witnesses during the trialopposing sides’ witnesses during the trial

– Re-cross examinations are allowedRe-cross examinations are allowed– Witnesses are restricted to factual Witnesses are restricted to factual informationinformation

– Only expert witnesses may offer opinions Only expert witnesses may offer opinions based on their training and expertisebased on their training and expertise


Types of evidence at a criminal Types of evidence at a criminal trialtrial– Testimonial evidenceTestimonial evidence– Real evidenceReal evidence– Documentary evidenceDocumentary evidence– Circumstantial evidenceCircumstantial evidence

To be admissible evidence must To be admissible evidence must be relevant and gathered without be relevant and gathered without violation the defendant’s rightsviolation the defendant’s rights


Presentation of defense attorney’s Presentation of defense attorney’s evidenceevidence– Defendant is under no obligation to Defendant is under no obligation to present evidence – the burden of proof is present evidence – the burden of proof is on the prosecutionon the prosecution

– Of primary concern is whether the Of primary concern is whether the defendant should testifydefendant should testify

After the defense rests its case the After the defense rests its case the prosecution is given the opportunity prosecution is given the opportunity for rebuttal which may be followed by for rebuttal which may be followed by the defense’s surrebuttalthe defense’s surrebuttal


Closing argumentsClosing arguments– Used to selectively review facts and Used to selectively review facts and evidenceevidence

– Plays toward what prosecutor and defense Plays toward what prosecutor and defense think are the strengths of the their think are the strengths of the their side and will appeal to jurorsside and will appeal to jurors

– Provides inferences from evidence to Provides inferences from evidence to prosecution and defenseprosecution and defense

– Cannot refer to matters not in evidenceCannot refer to matters not in evidence– Cannot comment on defendant’s refusal to Cannot comment on defendant’s refusal to testifytestify


Motion for a directed verdictMotion for a directed verdict– Defense normally makes at Defense normally makes at conclusion of state’s caseconclusion of state’s case

– Judge is requested to order jury Judge is requested to order jury to return a verdict of not guilty to return a verdict of not guilty on the grounds the state has on the grounds the state has failed to meet its legal burden of failed to meet its legal burden of proofproof


Instructions to the juryInstructions to the jury– Judge’s responsibilityJudge’s responsibility– Provides jury with information about Provides jury with information about the lawthe law Elements of the crimeElements of the crime Legal definitions (e.g., “conspiracy is ….”)Legal definitions (e.g., “conspiracy is ….”) Evidence required for proofEvidence required for proof Burden of proof required –what is beyond Burden of proof required –what is beyond reasonable doubtreasonable doubt

– Improper instructions are often the Improper instructions are often the basis for an appealbasis for an appeal

Jury DeliberationsJury Deliberations

What is a petty jury?What is a petty jury?– A bunch of strangers: they meet and then A bunch of strangers: they meet and then dispersedisperse

– A social group (“Twelve Angry Men and Women”)A social group (“Twelve Angry Men and Women”)– Mystery writers: what really happened?Mystery writers: what really happened?– Factual decision-makers: they only decide on Factual decision-makers: they only decide on the facts of the casethe facts of the case

– Nullifiers: they are not entitled to think the Nullifiers: they are not entitled to think the law is unjust (but they do anyway) and find not law is unjust (but they do anyway) and find not guilty on that basisguilty on that basis

– Justice makers: they think about their own Justice makers: they think about their own sense of justicesense of justice

– The bulwark of democracyThe bulwark of democracy

Jury DeliberationsJury Deliberations

The process of deciding on The process of deciding on guilt or innocenceguilt or innocence– Selecting a forepersonSelecting a foreperson– Initial votesInitial votes– Changes in initial positions – Changes in initial positions – dealing with hold-outsdealing with hold-outs

– Asking for additional information Asking for additional information or clarification from the judgeor clarification from the judge

– Arriving at a verdictArriving at a verdict

Jury Votes During Jury Votes During DeliberationsDeliberations

One study comparing first votes and final One study comparing first votes and final votesvotes

Guilty votes on first ballotGuilty votes on first ballot 0 0 1-51-5 6 6 7-11 7-11 1212

Final voteFinal vote– Not guilty Not guilty 83%83% 100100 00 2020 00– GuiltyGuilty 17%17% 00 100100 80 80 100100 This ended up as a hung juryThis ended up as a hung jury Very little change from initial to final Very little change from initial to final votes by the jury (No Twelve Angry votes by the jury (No Twelve Angry Persons scenarios)Persons scenarios)

Jury DeliberationsJury Deliberations Another study. How juries deliberate? Another study. How juries deliberate? Videotapes of actual case: convicted felon Videotapes of actual case: convicted felon on parole had a gun (which is illegal)on parole had a gun (which is illegal)– Stages in deliberations:Stages in deliberations:

Solving a puzzle: what are the issuesSolving a puzzle: what are the issues Discovering justice: what is the right thing to do (not Discovering justice: what is the right thing to do (not legal stuff)legal stuff)

Referencing the knowledge of the defendant: who is this Referencing the knowledge of the defendant: who is this personperson

Convincing the last holdoutConvincing the last holdout

– Three votes: 10-2, 11-1 12 for acquittal Three votes: 10-2, 11-1 12 for acquittal (though technically guilty)(though technically guilty)

– Jury deliberations are a search forJury deliberations are a search for both both guilt and justiceguilt and justice


The verdictThe verdict– While not constitutionally required, most verdicts While not constitutionally required, most verdicts must be unanimous must be unanimous

– If the jury has only six members, a unanimous If the jury has only six members, a unanimous verdict is requiredverdict is required

– Hung jury: jurors cannot reach a verdict. Hung jury: jurors cannot reach a verdict. Defendant may be retried at the discretion of Defendant may be retried at the discretion of prosecutorprosecutor

– Guilty verdict: judge will normally set a date for Guilty verdict: judge will normally set a date for sentencing and ask for a presentence investigation sentencing and ask for a presentence investigation reportreport

– Not guilty: defendant is free and may not be Not guilty: defendant is free and may not be retried for the same offense (but could be for retried for the same offense (but could be for

other offenses based on the same conduct)other offenses based on the same conduct)


The sentenceThe sentence– Normally the responsibility of Normally the responsibility of trial judge although in some trial judge although in some jurisdictions jury may impose or jurisdictions jury may impose or make recommendationmake recommendation

– Judges have great deal of Judges have great deal of discretion in state courtsdiscretion in state courts

– Judge will consider information in Judge will consider information in pre-sentence investigation report pre-sentence investigation report (PSI)(PSI)

Sentencing (cont.)Sentencing (cont.)

– Pre-sentence report is normally Pre-sentence report is normally compiled by a probation/parole compiled by a probation/parole officer and gives the judge personal officer and gives the judge personal information about the defendant, now information about the defendant, now convicted, which did not come out in convicted, which did not come out in the trial, to help the judges decide the trial, to help the judges decide on the best sentence for that person on the best sentence for that person Information such as employment history, Information such as employment history, residential stability, family life residential stability, family life

The PSI may include a recommendation to The PSI may include a recommendation to the judge on the appropriate sentencethe judge on the appropriate sentence


The AppealThe Appeal– Basically only on legal (not factual) grounds Basically only on legal (not factual) grounds – a violation of due process which occurred– a violation of due process which occurred

– Writ of habeas corpusWrit of habeas corpus– Harmless errorHarmless error– Indigent’s right to counsel for first appealIndigent’s right to counsel for first appeal– Court transcript serves as the basis for Court transcript serves as the basis for appellate reviewappellate review

– Appeal court can overturn verdict, mandate Appeal court can overturn verdict, mandate case back to lower court or re-trial, or case back to lower court or re-trial, or uphold verdict uphold verdict

Documents

Chapter 10 The Criminal Trial