Trial Procedures Chapter 10 Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Trial Preparation In a misdemeanor case the defendant has the right to have a trial within 30 days if they are confined in jail and 45 days if they are not confined. In a felony case the defendant has the right to a trial within 5 to 60 days after arraignment in Superior court on the indictment.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Waive Time Means the defense attorney gives up the right to a speedy trial for the defendant. These delays work in the favor of the defendant because it allows time for the emotions to subside, witnesses’ memories to fade, and ample opportunity for investigation of the case.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Public Trial A trial where the state must prove its case against the accused in an open public forum. The U.S. Supreme Court ruled 7 to 1 that both the public and the press have an absolute constitutional right to have access to a trial. Space may limit access by all but a representative public will attend in any event.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Challenging the Judge If the judge has personal knowledge about a case or personal, financial, or other interest must disqualify themself. Peremptory challenge—attorney challenges the judge’s qualifications without having to provide a reason, and each attorney may exercise one challenge in each trial.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Selection of Jurors Trial by one’s peers is an integral part of our system. Legally, a jury of one’s peers is a randomly selected group of qualified individuals from within the venue where the trial will be held. If the defendant’s own age group or ethnic group or gender is not represented on the jury, yet the jury was randomly selected, it is a legal jury. However, it is not legal to deliberately exclude any one particular group.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ The Venire List The list of individuals within a county who are eligible to be considered as potential jurors. When a jury is needed the jury administrator randomly selects a number of people to make up a panel from which a jury can be selected by the attorneys.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ The Jury Size In many states 12 jurors are required on a felony jury and from 6 to 12 on a misdemeanor jury. The Supreme Court ruled in 1978 that six is the minimum that a jury must have. (Ballew v. Georgia)

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Qualifying the Jurors Voir Dire: the process of qualifying who can serve as a fair and unbiased juror. Potential Jurors are asked questions in order to determine if they can be fair and unbiased in considering evidence.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Challenging the Prospective Juror Each attorney may challenge and excuse any of the potential jurors in two ways: 1) for cause, or 2) a limited number of peremptory challenges without giving a reason. The defense attorney can also challenge the entire jury pool as biased against their client.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ The Gag Order The judge cannot control the press but can control the information available to the press by limiting the release of information by all parties that have a legal role in the case.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ A Court Trial A trial by a judge sitting alone, without a jury. The defendant may waive their right to a jury trial to proceed with a court trial. This usually occurs when it is feared a jury will get emotionally involved against the defendant making it difficult to render a fair verdict.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Let the Trial Begin It is not uncommon to have all parties assembled and ready for trial only to have the attorneys agree to a last minute plea bargain. The prosecutor has the responsibility to prove the State’s case “beyond a reasonable doubt.”

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ The Attachment of Jeopardy In a court trial, jeopardy attaches when the first witness is sworn in and seated. In a jury trial, jeopardy attaches when the jury is sworn and seated. Jeopardy attaches means that the defendant has been placed in a position of jeopardy at that moment and the trial must continue to a conclusion. The defendant cannot be retried if the conclusion is not guilty.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ The Prosecutor’s Case-in-Chief The entire case presented by the prosecutor, including all witnesses and other evidence. The Prosecutor attempts to prove the truth of the charges by presenting three types of evidence: 1) physical, 2) confessional, and 3) testimonial.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Physical Evidence Physical in nature Examples: blood, semen, bullets, fingerprints, hair, documents, records, photographs, weapons etc… Fruits of the crime Instrument of crime Transferred evidence

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Confessional Evidence Refers to any confessions or incriminating statements made by the defendant to peace officers during the investigation. If statements were made while the defendant was in custody, the defendant must have been Mirandized before questioning.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Testimonial Evidence Refers to testimony given in court by witnesses. Two types of witnesses: 1)Expert—has some special understanding or knowledge about a particular subject and/or aspect of the crime. 2)Lay—might have some knowledge about the events of the crime, but has no special training or education in any aspect about which they testify.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Two Categories of Evidence Direct evidence—is evidence that directly proves a specific fact Indirect evidence—does not stand on its own as a relevant fact or truth. It requires the jury to make the connection between sets of facts, or to logically infer that something probably is true. Also called circumstantial evidence.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Scientific Evidence DNA testing is the newest method being used. The traditional standard for determining the reliability of any scientific method is known as the “Frye test” or the “Kelly- Frye test.” Fingerprint analysis has met the “Frye” test.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Other Issues Hypnotically enhanced memory as evidence Viewing the crime scene

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Direct and Cross Examination Direct—the questioning of a witness by the attorney who called the witness to help prove their case. Cross—the opposing attorney questions the witnesses.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Privileged Communication Not all testimony can be admitted at trial. Some people are protected by law against having to testify. Privileged communication relationships include: husband-wife, attorney-client, doctor-patient, therapist-patient, clergy- penitent, sexual assault victim-counselor, and domestic violence victim-counselor.

Basic Criminal Procedures, 3/E by Edward E. Peoples PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Conduct of the Jury The jury may not receive any evidence or information outside of the court room. Sequester—means to isolate them from outside influences either during the entire trial or just during the jury’s deliberation.