1. Chapter Six Place and Time of Trial Chapter Six Place and Time of Trial In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed… — US Constitution, Amendment VI, 1791

2. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Change of Venue Competency to Stand Trial Constitutional Right to a Speedy Trial Continuance Insanity Statute of Limitations Statutory Right to a Speedy Trial Key terms to understand for this chapter… KEY WORDS

3. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Discuss the constitutional requirements concerning the place of trial. Explain when a defendant may want a change of venue. Distinguish between insanity and competency issues. List the issues involved in determining if the defendant's constitutional right to a speedy trial has been violated. Explain the differences between the constitutional and statutory right to a speedy trial.

4. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Describe the differences between speedy trial and statute of limitations. Explain the issues that a trial judge must consider in determining whether to grant a motion for a continuance. Discuss the steps that a state must take when the defendant is confined in another state. (cont.)

5. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Before the trial phase of the administration of justice begins, many decisions must be made. It must be determined when & where trial will take place. Whether the trial will be by the judge alone or by jury Whether the defendant will represent himself/herself or be assisted by counsel. What witnesses will be called, and what physical evidence will be presented. Whether a pretrial hearing will be held. Pretrial Action

6. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The defense of insanity refers to the defendant’s mental state at the time that the alleged crime was committed. Competency to stand trial refers to the defendant’s mental state at the time of the trial. Due Process clauses of the Fifth and Fourteenth Amendments prohibit trial of an incompetent individual. If no issue is raised as to competency of the defendant, it is assumed that he/she is competent. Competency to Stand Trial

7. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 A defendant is incompetent if lacking the capacity to understand the nature and object of the proceeding. –or lacking ability to consult with the defense counsel or assist the defense counsel in preparing a defense Competency to Stand Trial Lionel Tate, right, speaks with his attorney Ellis Rubin, during a competency hearing Monday, December 19, 2005, in Fort Lauderdale, Florida. Broward County Circuit Judge Joel T. Lazarus ruled Tate mentally competent to face legal proceedings, after two psychologists testified that Tate appeared to be faking symptoms of mental illness. Judge Lazarus set a hearing to determine whether Tate, on probation for the 1999 killing of a 6-year-old girl, should return to prison for allegedly robbing a pizza delivery man at gunpoint.

8. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 If the defendant’s competency is at issue, burden of presenting competency evidence is on the defense. If determined incompetent, the state may detain the defendant to determine whether there is a probability that he/she will attain competency in the near future. Unlike the insanity defense, if the defendant regains his/her competency, he/she may then be prosecuted. Competency to Stand Trial

9. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Sixth Amendment to the Constitution guarantees the right to a speedy & public trial, by an impartial jury of the State & district where the crime was committed. –as a result of colonists’ having been dragged from their homes to some secret place, often to England, and tried away from their peers Thus, the place of the trial, or venue, lies within the judicial district in which the crime occurred. The term venue is derived from the French word visne, meaning neighborhood. Place of the Trial Venue

10. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 If the charge is a felony, the judicial district is the county; if a misdemeanor, the specific area of the county so designated and established by law. The burden is on the prosecution to prove the crime was committed within the district in which trial is held. –may be accomplished by an investigating officer’s testifying on the specific location where the crime was committed If venue is not established by the prosecution, a conviction may be reversed on appeal. –as it is the right of the defendant to have the jury chosen from the judicial district in which the crime was committed Place of the Trial Venue

11. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The right to trial in where the crime occurred may be waived and a request made for trial in another district. –particularly true in felony cases The defendant often believes a fair and impartial trial cannot be had in the county where the crime occurred. –usually on belief that adverse publicity, nature of the crime, or community hostility makes it impossible to obtain an impartial jury Under these circumstances, the defendant will file a written request, known as a motion to change venue. Place of the Trial Motion to Change Venue

12. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In most instances, the prosecutor will oppose change of venue because of inconvenience and the cost involved. –cost is not to be considered by the judge because the accused is entitled to a fair & impartial trial, regardless of cost If the judge feels the change should be granted, trial will be held in a county where it is felt a fair trial can be had. –in most instances, an adjoining county, with cost of the trial borne by the county where the crime occurred If the judge does not grant a change of venue and the defendant is convicted, the refusal to grant a change of venue may be grounds for appeal. Place of the Trial Motion to Change Venue

13. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Generally, a request for change of venue must take place before the date set for the commencement of trial. A change may be made after the commencement if the jury panel is exhausted with no jury selected, or there is danger of violence in the district Place of the Trial Time of Request for Change of Venue Serial-murder suspect John E. Robinson Sr. appears in Johnson County Court in Olathe, Kansas, January 30, 2002, for a change of venue hearing. Robinson’s lawyers said he could not get a fair trial in Johnson County, Kansas because of extensive media coverage.

14. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Speedy trial is a fundamental right of an accused –otherwise, many injustices may be suffered The people, or society, also have an interest in the guarantee to trial without unnecessary delay. –the only way society is properly protected from offenders Right to a speedy trial does not permit the defendant to demand a trial be held the same day as the arrest. –the prosecution has the right to prepare its case, but may not take an indefinite time in that preparation In setting a trial date, many factors must be considered. Time of the Trial

15. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Like other rights, a defendant may waive speedy trial. Regardless of hardships suffered, a defendant often will delay trial as long as possible. –months can pass between the time of arrest & when a defendant is brough to trial, particularly in felony cases Delay often works to the advantage of the accused because, with the passage of time. –witnesses for the prosecution ma become unavailable, or their memories are more likely to dull. –physical evidence becomes difficult to identify and likely to become lost or contaminated Time of the Trial Continuances

16. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 While a defendant may suffer from continuances, others also suffer, particularly witnesses. A continuance often is not granted until the case is called for trial, so notice is not possible. –many witnesses must take time off from work, losing pay and incurring expense & inconvenience Delays cause overcrowding of the court calendar, and other trials must be delayed, particularly civil trials. The most frequent ground alleged for a continuance is adequate time to prepare the case. Time of the Trial Continuances

17. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Other grounds include obtaining witnesses or physical evidence, securing adequate &effective counsel for the defense, and ensuring the sound physical condition of the defendant. Delay may not be caused by inactivity of the defense in not preparing the case for trial. There is no set procedure to be followed in making a request for a continuance. Whether a continuance will be granted is at discretion of the trial judge. Time of the Trial Continuances

18. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The US Supreme Court, in Barker v. Wingo, discussed ramifications of a speedy trial, and the effect of delays on both the accused and the people. –“The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” Time of the Trial Continuances - Barker v. Wingo David Hackett Souter (1939–) was appointed as Associate Justice of the Supreme Court of the United States in 1990, filling the seat vacated by William J. Brennan. On the Court he usually votes with the liberal wing.

19. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 –“In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from and at times in opposition to the interests of the accused.” –…the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape.” –“Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.” Time of the Trial Continuances - Barker v. Wingo The US Supreme Court, in Barker v. Wingo, discussed ramifications of a speedy trial, and the effect of delays on both the accused and the people.

20. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In the past, an acceptable ground for delay in bringing a case to trial was the incarceration in another state. It was assumed the prosecution had no obligation to bring a defendant to trial if he/she was unavailable because of imprisonment beyond the jurisdiction of the court in which he/she was charged with a crime. This was changed by the Supreme Court in Smith v. Hooey, when the Court held a defendant was entitled to a speedy trial even while serving time in another state. –particularly if the defendant demanded to be brought to trial Time of the Trial Out-of-State Incarceration

21. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 To assist those involved in administration of justice, most states have statutes setting forth guidelines on when a trial should take place. –even these guidelines have much flexibility Most have provisions stating that unless brought to trial within a set time, the charge is dismissed, and the defendant released or bail exonerated. –this period may be waived by the defendant In most instances, if a misdemeanor is dismissed, further prosecution is barred, but states vary in the effect of a dismissal of a felony charge. Time of the Trial Statutory Regulations

22. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 It has been held that unless reasonable efforts are made to execute an arrest warrant, the accused may have been denied the right to a speedy trial. If a reasonable effort is made to execute a warrant, and the accused cannot be located, delay will not be interpreted as a denial of a speedy trial. It has been held that if there is good cause for a delay issuing an arrest warrant after a crime is committed, or for not serving the warrant immediately after issue, a defendant’s right to speedy trial is not denied. Time of the Trial Statutory Regulations

23. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Many states have passed statutes similar to California Penal Code 1050(a): –“The welfare of the people requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time,” –“…it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite proceedings to the greatest degree that is consistent with the ends of justice.” –“…criminal cases shall be given precedence over, and set for trial and heard prior to any civil matters.” –“Also no continuance of a criminal trial shall be granted except upon sufficient cause shown in open court…” Time of the Trial Statutory Regulations

24. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 To further assure one accused of committing a crime is afforded a speedy trial, a statute of limitations is incorporated into the laws of all the states. –termed a humanitarian statute, it provides that prosecutive action must be commenced within a reasonable time The statute prevents state or society from holding threat of prosecutive action for an indefinite period over the head of an offender. –also described as an act of grace, as there is a surrendering by the sovereignty of its right to prosecute Time of the Trial Statute of Limitations

25. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 It gives law enforcement responsibility of immediate, continuous action upon crime, to identify a perpetrator. –so that he/she may be afforded a speedy trial It also gives prosecutive officials responsibility of commencing prosecution within a specified time after the identity of an offender is established. There are occasions when a law enforcement agency is unsuccessful in identifying perpetrators until after the time stated in the statute of limitations has lapsed. –perpetrators may not be brought to trial if later identified Time of the Trial Statute of Limitations

26. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In most states, the statute of limitations is considered a jurisdictional matter and may not be waived. If whereabouts of identified perpetrators of a crime are unknown, some prosecutive action, such as a complaint or indictment, must be commenced before the statutory time expires or future prosecutive action will be barred. There was no statute of limitations, as we know it, at common law in England, particularly in murder cases. This may be the reason that even today, in the US, the statute of limitations never lapses on a murder charge. Time of the Trial Statute of Limitations

27. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Sixth Amendment guarantees an accused the right to a “speedy and public trial by an impartial jury of the state and judicial district wherein the crime shall have been committed.” Venue refers to the geographical location of the trial. Venue may be waived by a defendant. The defense of insanity refers to the accused's mental state at the time of the criminal act. Important topics for this chapter… SUMMARY

28. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The issue of competency refers to the mental status of the defendant at the time of trial. Most states require the defendant to establish incompetency by a preponderance of evidence. A defendant is considered incompetent if he or she lacks the capacity to understand the charges and the object of the proceedings against him or her. The right to a speedy trial is a fundamental right of an accused. Important topics for this chapter… SUMMARY (cont.)

29. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 A motion to change venue may be made by the defendant if he or she contends that a fair trial in the district where the crime occurred is not possible. The prosecution may not force a change of venue because of the constitutional right of a defendant to be tried in the judicial district in which the crime occurred. The statutory right to a speedy trial is based on definite guidelines and specific time periods. Important topics for this chapter… SUMMARY (cont.)

30. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The question of whether the right to a speedy trial has been violated depends on a balancing of the issues. The nature of the right makes it impossible to pinpoint a precise time when the right must be asserted or is waived. The statute of limitations refers to the period between the time when the crime was committed and prosecution is started. Some crimes, like murder, have no statute of limitations. Important topics for this chapter… SUMMARY (cont.)

31. Chapter End