1. Pretrial and Trial Procedures
Chapter 10
Pretrial and Trial Procedures

2. Charging the Defendant
Charging a defendant with a crime is a critical stage in the pretrial process.
The prosecutor selects the charge.
The process varies depending on whether it occurs via a grand jury or a preliminary hearing.

3. The Indictment Process: The Grand Jury
The grand jury was an early development of English common law.
The concept of the grand jury was brought to the American colonies by settlers and later incorporated into the Fifth Amendment.
Today, the role of the grand jury is diminishing.
The roles of the grand jury are to act as an independent investigating body, and to act as the community’s conscience in determining whether an accusation justifies a trial.
The grand jury relies on the testimony of witnesses called by the prosecution through its subpoena power.
A true bill is the action by a grand jury when it votes to indict [formally accuse] a suspect; a no bill is the action by a grand jury when it votes not to indict a suspect.
Meets at the request of the prosecution, and the hearings are closed and secret.

4. Grand Jury, continued
Accused individuals are not allowed to attend the hearing unless they are asked to testify by the prosecutor or the grand jury.
A grand jury is usually made up of 16 to 23 individuals who are chosen at random.
The requirements to serve on a grand jury usually include: that an individual be at least 18 years of age, must be a U.S. citizen, must be a resident of the jurisdiction for one year or more, and must possess sufficient English-speaking skills for communication

5. The Information Process: The Preliminary Hearing
The prosecutor presents the case so that the judge can determine whether the defendant should be held to answer the charge against him or her in court.
Used as an alternative to the grand jury in about half of the states and is open to the public, the defendant, and the defendant’s counsel.
The defense attorney is permitted to cross-examine witnesses and challenge evidence.
The judge decides whether there is sufficient probable cause to believe that the defendant committed the alleged crime, and if so, the defendant is bound over for trial.
Prosecutors will file an information which is a charging document, similar to an indictment.

6. Waiving the Preliminary Hearing
The defendant might waive the preliminary hearing if:
S/he has already decided to plead guilty
S/he wants to speed up the criminal justice process
S/he hopes to avoid the negative publicity that might result from a preliminary hearing

7. Arraignment
The judge informs the defendant of the charges and appoints counsel if necessary.
According to the Sixth Amendment, the accused has the right to be informed of the nature and cause of the accusation.
The defendant is asked to enter a plea.
A not guilty plea will result in the judge setting the case for trial.
If the defendant enters a guilty or nolo contendere plea, a date for sentencing is arranged.

8. The Trial
It’s an open and public hearing designed to examine the facts of the case brought by the state against the accused
A jury hears most formal trials, although some defendants waive their constitutional right to a jury trial and request a bench trial, in which a judge alone renders a verdict
Adjudication is the term used to describe the determination of guilt or innocence in a criminal trial

9. Legal Rights During Trial
The accused has a right to a fair trial
The right to an impartial judge
The right to be competent at trial
If a defendant is considered mentally incompetent, his/her trial must be postponed until treatment renders him/her capable of participating in their own defense
The Supreme Court ruled that forced treatment does not violate a defendant’s due process rights, if it is medically appropriate, considering less intrusive alternatives

10. The Right to Confront Witnesses
Confrontation of witnesses is essential to a fair trial, because it controls the admissibility of hearsay evidence and is guaranteed in the Sixth Amendment
The right to confrontation is also violated if out-of-court testimony is used to convict the accused
The confrontation clause is a constitutional right to see and cross- examine all the witnesses against a criminal defendant

11. The Right to Compulsory Process
Compulsory process means to compel the production of witnesses via a subpoena
The subpoena orders the witness to appear in court at a specified time and place

12. The Right to an Impartial Jury
This right appears in the original Constitution as well as the Bill of Rights.
The defendant can choose whether the trial will be before a judge or a jury.
The Supreme Court has used 6 month’s potential imprisonment as the dividing line between when an individual is and is not entitled to a jury trial.

13. The Right to Counsel at Trial
The Sixth Amendment requirement regarding the right to counsel in the federal court system is also binding on the states.
A defendant has a right to counsel in any case in which imprisonment is possible (this includes imprisonment as a suspended sentence).
A defendant in a criminal trial can waive the right to counsel, however the courts encourage the acceptance of counsel.
Even indigent defendants have a right to counsel and today the state must provide counsel.
Defendants are allowed to represent themselves if they prove to be mentally competent and are not disorderly and disruptive.

14. The Right to a Speedy Trial
There are often times delays in criminal cases, which presents constitutional issues.
A speedy trial is important to improve the credibility of the process, reduce anxiety for the defendant, avoid extensive pretrial publicity that would influence a fair trial, and avoid delay that would affect the defendant’s right to defend him/herself.
There is no set time that defines a speedy trial.
If defendants agree to or cause a delay, they have waived their right to a speedy trial.

15. The Right to a Public Trial
The Supreme Court has established that criminal trials must remain public, as guaranteed by the Sixth Amendment
Adverse pretrial publicity can prevent a defendant from getting a fair trial.
The Supreme Court has established that criminal trials must remain open to the press.
The legal community is divided over the use of TV cameras in the courtroom.
The right to a public trial must be balanced with the First Amendment rights of the media.

16. The Right to be Convicted by Proof Beyond a Reasonable Doubt
The standard required to convict a defendant charged with a crime at the adjudicatory stage of the criminal process is proof beyond a reasonable doubt.
The underlying premise of this standard is that it is better to release a guilty person than to convict someone who is innocent.
The standard in a civil case is preponderance of the evidence.
The criminal process requires proof beyond a reasonable doubt for each element of the offense.

17. The Trial Process
Formal process conducted in an orderly fashion in accordance with rules of criminal law, procedure, and evidence.
Each jurisdiction has its own trial procedures but all jurisdictions conduct criminal trials in a similar fashion.

18. Jury Selection
Jurors are selected randomly from licensing or voter registration lists
Through the process of voir dire, the jurors for the trial are selected.
A juror may be challenged for cause and dismissed by the defense or the prosecution if he/she is biased, has prior knowledge about a case, or because he/she will be unable to render an impartial judgment.
Peremptory challenges allow the prosecution or defense to excuse a juror for no particular reason or for a reason that is undisclosed.
Legal experts who question the fairness and propriety with which it has been used have criticized the preemptory challenge.
It is becoming increasingly difficult to find an impartial jury in an increasingly technological age.

19. Opening Statements Occurs once the jury is selected.
The jury/judge is introduced to criminal charges, the facts of the case, and each side will demonstrate its case.
Gives an opportunity to each side to sway the jury before the trial begins.

20. The Prosecution’s Case
The prosecutor presents evidence and witnesses.
The initial questioning of one’s own witnesses during trial is called direct examination.
Next, the defense is afforded an opportunity for cross- examination, and can challenge the elements of a testimony

21. The Criminal Defense
After the prosecutor’s evidence, the defense may enter a motion for a directed verdict, which is an order from the judge directing a jury to acquit the defendant because the state has not proven the elements of the crime according to legal standards.
The defense then has the option of presenting many, some, or no witnesses on behalf of the defendant.
After the defense presents its case, the government can then present rebuttal evidence.

22. Closing Arguments
Used to review the facts and evidence of the case and draw reasonable inferences.
Either party can elect to forgo the right to make a final summation to the jury.

23. Instructions to the Jury
The judge will instruct, or charge, the jury members on principles of law that should guide their decision.
The instructions given to the jury are important because they may serve as the basis for a subsequent appeal.

24. Deliberations and Verdict
In highly publicized and celebrated cases, the judge may sequester the jurors during their deliberations.
The two possible verdicts are guilty and not guilty.
If the jury cannot reach a verdict, the result is a hung jury and the prosecution may bring the defendant to trial again.
When the jury ignores the facts of the case and the judge’s legal instructions and decides instead on the basis of emotion and personal preference, this is referred to as jury nullification.
Supporters of jury nullification argue that it is an important safeguard against government oppression and unjust application of the law.

25. The Sentence
Normally the judge has the responsibility of imposing the sentence.
The sentence is determined by statutory requirements as established by the legislature
The jury may make recommendations for leniency for certain offenses.
Different criminal sanctions include fines, probation, imprisonment, and even commitment to a state hospital

26. Appeals
The defense may petition an appellate court to review the procedures used during trial, via appeal or habeas corpus.
Post-conviction appeal is a request for an appellate court to examine a lower court’s decision in order to determine whether proper procedures were followed.
Direct appeals are guaranteed by law
Therefore, most defendants get to appeal at least once.
Appeals do not give the convicted an opportunity to try the case a second time but to challenge procedural matters.
Discretionary appeals are also possible.
A writ of habeas corpus is the primary means by which state prisoners have their convictions or sentences reviewed in the federal court and seeks to determine the validity of a detention by asking the court to release the person or give legal reasons for the incarceration.