The Criminal Trial

Adversary Proceedings The trial in the USA, based on common law principles, is an adversary proceedings Each side – prosecution and defense – is entitled to present the best possible case for its side on a “level playing field.” The side which makes the most convincing argument before the jury or judge wins. It is the job of the judge to make sure a level playing field exists, or that due process is provided the defendant. If due process is followed, the decision is correct and just (even if there are doubts about the substantive guilt or innocence of the defendant) .

Civil Rights During Trial The right to be competent at trial Defendants must be mentally competent to understand the nature and extent of legal proceedings Courts may force defendants to receive treatment so they can be tried Important governmental interest must be at stake Must significantly further state interests Other less intrusive treatments unlikely to achieve substantially the same results Must be medically appropriate

Civil Rights During Trial (cont.) The right to confront witnesses Provide for a control over hearsay evidence and allows the authenticity of witnesses to be challenged Helps the accused in preparation of a defense to know who will present testimony for the state –discovery Does not necessarily mean a face-to-face confrontation Court may use alternative methods to protect victims or other witnesses from trauma (e.g., child who has been sexually abused)

Civil Rights During Trial (cont.) The right to a jury trial Applies to any crime with a punishment of 6 months or more Constitution does not require a 12 person jury, smaller juries may be permitted The 6th and 14th Amendments do not mandate a unanimous verdict in non-capital cases

Civil Rights During Trial (cont.) Right to counsel at trial May choose to represent self (pro se) Waiver must be made knowingly and intelligently Court may refuse to allow if defendant not believed competent to waive right No right to self-representation in appeals If unable to pay for a defense lawyer, state must provide one

Civil Rights During Trial (cont.) Public Trials 6th Amendment guarantees a speedy and public trial Designed to ensure fairness of the proceedings Both the press and public may attend trials, even in sensitive cases Courts may be closed to public if involves national security interests Issue: cameras in court Are these a good idea or will they interfere in the conduct of the trial – legal actors will play to the camera Up to the judge, in most cases Defendant can not object to use of cameras in the courtroom

Civil Rights During Trial (cont.) The right to a speedy trial No set time which defines the term Supreme Court considers a fundamental right Improves the credibility of the trial Avoids lengthy pretrial detentions Avoids extensive pretrial publicity and other conduct that may interfere with fair trial Delay may adversely affect defendant’s ability to defend themselves

Civil Rights During Trial (cont.) Pretrial publicity Judge may not prohibit press from reporting details of a crime Hearings may be closed to public if there is a substantial probability that the defendant’s right to a fair trial would be prejudiced by publicity or trial involves certain people or crimes

Standards of Proof

Civil Rights During Trial (cont.) Proof beyond a reasonable doubt Standard of proof required to convict a defendant Beyond reasonable doubt does not mean certainty but close to it Defendants are presumed innocent until proven guilty Reduces risk of convictions based on factual errors Underlies our belief that it is better to release a guilty person than convict an innocent one

The Trial Process Formal process conducted in a specific and orderly fashion according to rules of criminal law Structured adversary proceeding Each side seeks to present its case favorably

The Trial Process

The Trial Process (cont.) Jury selection: petite, petty or trial jury Constitutional right to an “impartial jury of the state” in most trials Selecting a jury: venire and voir dire Jurors randomly selected from voter registration or licensing lists (called a “venire”). Few states impose qualifications on jurors Usually prohibit convicted felons from serving

The Trial Process (cont.) Voir Dire The actual selection of jurors and alternates for the trial (Alternates in case a juror is disqualified or falls ill) Colloquial French expression for “to tell the truth” Questioned by prosecutor, defense, and sometimes the judge about their background, occupations, residences, and knowledge or interest in the case Fill out questionnaires and/or in asked in person

The Trial Process (cont.) Challenges for cause During voir dire prosecution or defense show why potential juror cannot be impartial (has made up mind, knows the defendant personally, unwilling to say that can be impartial) No limit to the number of prospective jurors who can be removed for cause

The Trial Process (cont.) Peremptory challenges Prosecution and defense may excuse prospective jurors without providing a reason or “cause” Number of challenges are limited – varies by jurisdiction Cannot be used to systematically eliminate jurors on the basis of race, ethnicity, or gender

Informal Participants in Jury Selection Jury consultants: experts in how jurors behave and vote Goal: getting the right kind of people for your side on the jury Used by prosecutors and defense in serious cases Costly and only available for the well-off Knowledge base Research on how certain kind of people (age, race, gender, occupation) have voted in similar cases to convict or find not guilty

Informal Participants (cont.) Parallel juries during trials Select a jury which mirrors the real jury and give them the trial transcript after each day to see how they think the case is going (as a hint on how the real jury might be thinking) Can guide arguments, selection of witnesses, whether defendant will take the stand, closing statements

The Trial Process (cont.) Opening Statements Prosecutor, then defense makes an opening statement Statements are designed to provide an overview of each sides case to the jury Must not contain prejudicial remarks, inflammatory statements, or mention irrelevant facts Tend to depict the defendant in very different terms

The Trial Process (cont.) Witness Testimony Direct examination: the questioning of one’s own (prosecution or defense) witness during a trial Cross examination: interrogation of opposing sides’ witnesses during the trial Re-cross examinations are allowed Witnesses are restricted to factual information Only expert witnesses may offer opinions based on their training and expertise

The Trial Process (cont.) Types of evidence at a criminal trial Testimonial evidence Real evidence Documentary evidence Circumstantial evidence To be admissible evidence must be relevant and gathered without violation the defendant’s rights

The Trial Process (cont.) Presentation of defense attorney’s evidence Defendant is under no obligation to present evidence – the burden of proof is on the prosecution Of primary concern is whether the defendant should testify After the defense rests its case the prosecution is given the opportunity for rebuttal which may be followed by the defense’s surrebuttal

The Trial Process (cont.) Closing arguments Used to selectively review facts and evidence Plays toward what prosecutor and defense think are the strengths of the their side and will appeal to jurors Provides inferences from evidence to prosecution and defense Cannot refer to matters not in evidence Cannot comment on defendant’s refusal to testify

The Trial Process (cont.) Motion for a directed verdict Defense normally makes at conclusion of state’s case Judge is requested to order jury to return a verdict of not guilty on the grounds the state has failed to meet its legal burden of proof

The Trial Process (cont.) Instructions to the jury Judge’s responsibility Provides jury with information about the law Elements of the crime Legal definitions (e.g., “conspiracy is ….”) Evidence required for proof Burden of proof required –what is beyond reasonable doubt Improper instructions are often the basis for an appeal

Jury Deliberations What is a petty jury? A bunch of strangers: they meet and then disperse A social group (“Twelve Angry Men and Women”) Mystery writers: what really happened? Factual decision-makers: they only decide on the facts of the case Nullifiers: they are not entitled to think the law is unjust (but they do anyway) and find not guilty on that basis Justice makers: they think about their own sense of justice The bulwark of democracy

Jury Deliberations The process of deciding on guilt or innocence Selecting a foreperson Initial votes Changes in initial positions – dealing with hold-outs Asking for additional information or clarification from the judge Arriving at a verdict

Jury Votes During Deliberations One study comparing first votes and final votes Guilty votes on first ballot 0 1-5 6 7-11 12 Final vote Not guilty 83% 100 0 20 0 Guilty 17% 0 100 80 100 This ended up as a hung jury Very little change from initial to final votes by the jury (No Twelve Angry Persons scenarios)

Jury Deliberations Another study. How juries deliberate? Videotapes of actual case: convicted felon on parole had a gun (which is illegal) Stages in deliberations: Solving a puzzle: what are the issues Discovering justice: what is the right thing to do (not legal stuff) Referencing the knowledge of the defendant: who is this person Convincing the last holdout Three votes: 10-2, 11-1 12 for acquittal (though technically guilty) Jury deliberations are a search for both guilt and justice

The Trial Process (cont.) The verdict While not constitutionally required, most verdicts must be unanimous If the jury has only six members, a unanimous verdict is required Hung jury: jurors cannot reach a verdict. Defendant may be retried at the discretion of prosecutor Guilty verdict: judge will normally set a date for sentencing and ask for a presentence investigation report Not guilty: defendant is free and may not be retried for the same offense (but could be for other offenses based on the same conduct)

The Trial Process (cont.) The sentence Normally the responsibility of trial judge although in some jurisdictions jury may impose or make recommendation Judges have great deal of discretion in state courts Judge will consider information in pre-sentence investigation report (PSI)

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

The Trial Process (cont.) The Appeal Basically only on legal (not factual) grounds – a violation of due process which occurred Writ of habeas corpus Harmless error Indigent’s right to counsel for first appeal Court transcript serves as the basis for appellate review Appeal court can overturn verdict, mandate case back to lower court or re-trial, or uphold verdict

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