1. Chapter Seven Trial Chapter Seven Trial The majestic equality of the law forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. — Anatole France, 1914

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 Alternate Jurors Bench Trial Court Trial Gag Orders Impartial Trial-by-Jury Locked-Down Jury Petty Offenses Public Trial Key terms to understand for this chapter… KEY WORDS Right of the press and the public to access to criminal trials Right to a Trial-by-Jury

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… Explain the differences between a bench and a jury trial. Discuss the right of the public and press to attend a criminal trial. Identify what constitutes a public trial. Explain the defendant's right to a jury trial. Discuss the procedure for waiving a jury trial. List what constitutes a petty offense. Discuss the rules regarding the size of a jury.

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 By the beginning of the eighteenth century, the accused was being confronted by witnesses against him/her. Witnesses were placed under oath to relate facts of their own knowledge; hearsay evidence eliminated. Juries rendered verdicts based upon the testimony of witnesses given in open court. –not what jurors learned about an accusation outside of court Rules of evidence were being formulated. Trial-by-jury was rapidly becoming part of the judicial system in Great Britain, and adopted by the colonists. Bench Trial versus Jury Trial

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 The colonists had deep reverence for trial by jury, and strongly resented interference by the king of Great Britain in his efforts to subdue them. This resentment was manifested in the Declaration of Independence: Bench Trial versus Jury Trial Prosecutor Patricia Hogue points out defendant Barbara Atkinson, lower left, to the jury and Judge Cliff Stricklin during her final arguments in a Dallas, Texas courtroom. –“The history of the present King of Great Britain is a history of repeated injuries. –To prove this, let facts be submitted to a candid world. …for his depriving us in many cases, of benefits of trial by jury.”

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 To prevent possible future interference with the right to a trial by jury in the newly formed government, the Sixth Amendment to the US Constitution contained the provision that all persons accused of a crime had the right to be tried by an impartial jury. The provision is binding through the Due Process Clause of the Fourteenth Amendment –and contained in all state constitutions or statutes While the Sixth Amendment did not mention a number of persons required for a jury, it was generally accepted the common law rule of twelve persons would prevail. Bench Trial versus Jury Trial Accused’s Right to Jury 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 An accused’s being permitted to waive jury trial, and heard by a judge alone was practically unthought of. It was not until 1930’s Patton v. US that the Supreme Court held a verdict rendered by a jury of fewer than twelve members was not a violation of an accused’s constitutional right to a trial by jury. Though the Court in Patton sanctioned the right to waive right to a jury, it did emphasize the necessity of preserving the jury trial system. Bench Trial versus Jury Trial Right to Jury Trial - Patton v. US

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 The Court stated: –“Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.” Bench Trial versus Jury Trial Right to Jury Trial - Patton v. US

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 Supreme Court further emphasized importance of the right to a trial by jury in Duncan v. Louisiana: –“Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” –“Beyond this, the jury trial provisions …reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizens to one judge or to a group of judges.” Bench Trial versus Jury Trial Right to Jury Trial - Duncan v. Louisiana

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 The Supreme Court further emphasized importance of the right to a trial by jury in Duncan v. Louisiana: –“Fear of unchecked power, … found expression in criminal law in this insistence upon community participation in the determination of guilt or innocence.” –“The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement …must therefore be respected by the States.” Bench Trial versus Jury Trial Right to Jury Trial - Duncan v. Louisiana

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 Advantages of a jury trial over a trial by a judge sitting alone, also referred to as a court trial, include: –belief that a jury of twelve persons, representing a cross section of society, may be better able to evaluate the demeanor of witnesses –group judgment of a jury is better than that of a single person –there is a value in community participation in the administration of justice –the jury injects the common law test into the legal system instead of the legalistic viewpoint Bench Trial versus Jury Trial Avantages to Jury Trial

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 Situations arise in which it may be advantageous to waive right to jury trial in favor of a court trial. –the crime may be a heinous one –emotional involvement of the community may make the selection of an impartial jury very difficult –a defendant’s general appearance may be such that a jury may become prejudiced –past criminal record may subject a defendant to impeachment –the defendant may be a part of a group that local feeling is against, and a jury may convict by association rather than on facts of the case Bench Trial versus Jury Trial Trial by Judge Alone

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 After the Patton decision, a large majority of the states began permitting the defendant to waive trial by jury. –a few states still do not permit a defendant to waive jury trial –others permit waiver in misdemeanors but not on felonies –still others permit the jury to be waived in all cases except those with a maximum penalty of death –one state permits a defendant to waive the jury in capital cases and be tried by a panel of three judges –a few states permit the jury to be waived in any type of charge, including capital cases Bench Trial versus Jury Trial Procedure in the Waiver of a Jury

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 States also differ concerning consent. –who must give it & how the consent is given Some provide that waiver is solely the right of the defendant, others that consent must be by prosecution as well as the defendant. A few require defendant, prosecution & judge all to agree to the waiver. Bench Trial versus Jury Trial Consent to the Waiver of a Jury

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 In some states, the defendant must waive the jury in open court by an express statement to that effect. –others require the defendant to consent to the waiver in writing before the date of the trial Some hold that unless the defendant demands a jury trial at the time that he/she enters the plea of not guilty, a jury trial is automatically waived. If the waiver takes place, it is usually before the jury is selected, but a few states permit the defendant to waive the jury anytime before the verdict is rendered. Bench Trial versus Jury Trial Form of the Waiver of a Jury

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 May the defendant waive the jury and demand a bench trial, also known as a court trial? This was answered by the Court in Singer v. US. –the Court held that while a defendant could waive right to a jury trial, there is no correlative right to a bench trial, recognizing a prosecutor also has a right to demand jury trial The Court concluded that forcing a jury trial was not a violation of any constitutional right of an accused. In this regard, many states permit the judge to refuse to consent to a court trial in lieu of a trial by jury. Bench Trial versus Jury Trial Demanding a Bench Trial

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 Trial by jury is not an absolute right in all instances. In 1937’s Duncan v. Louisiana, the Court sanctioned a nonjury trial to one accused of a petty offense: –“So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions.” –“…possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits …resulting from the availability of speedy and inexpensive non-jury adjudications.” Bench Trial versus Jury Trial Denial of a Jury Trial in Petty Offenses

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 Although statutes of some states designate certain offenses as petty, this is not conclusive, and the courts may render different interpretations of petty offenses. As stated by the Supreme Court in Frank v. US, the most relevant indication of seriousness of an offense was the severity of the penalty that could be imposed. –severity of the penalty authorized, not the penalty actually imposed by the judge In Frank case, the Court implied they were relying on criterion set forth in Cheff v. Schnackenberg. Bench Trial versus Jury Trial Determining Petty Offenses

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 Cheff adopted the definition of a petty offense found in 18 US Code, section 1, where it is described as: –“…any misdemeanor the penalty for which does not exceed imprisonment for a period of six months or a fine of $500.” A few states grant a defendant the right to a jury trial in all misdemeanor charges irrespective of the penalty. –but deny right to a jury trial on infractions—violations for which no imprisonment may be imposed Bench Trial versus Jury Trial Determining Petty Offenses

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 Laws of the US, as well as of most of the states, require a criminal trial jury to consist of twelve persons. There are a few states where, in misdemeanors the jury may comprise any number fewer than twelve. –the US Supreme Court has not approved the use of a jury with fewer than six members As in Patton, in some states it is held that a felony trial must commence with twelve persons in the jury, but if one should become incapacitated, trial may continue with fewer than twelve if agreed to by the defendant, his/her attorney, and the prosecution. Bench Trial versus Jury Trial Juries Comprising Fewer Than 12 Persons

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 Some states have broken with the traditional number of twelve, and have passed laws providing that a jury may comprise fewer than twelve. –due to the difficulty of obtaining & managing twelve jurors Whether trial by a jury of fewer than twelve is denial of right to trial by jury is answered in Williams v. Florida. –in which the Supreme Court held that a jury of fewer than twelve persons, did not violate the Due Process Many courts select alternate jurors, to sit with the jury, prepared to serve if a juror is excused/disqualified during trial. Bench Trial versus Jury Trial Juries Comprising Fewer Than 12 Persons

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 The Sixth Amendment provides guarantee to a public trial, to ensure the accused is dealt with fairly. Stated by the Supreme Court in Estes v. Texas: –“History has proven that secret tribunals were effective instruments of oppression.” –“…traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.” Public Trial Estes v. Texas

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 The Sixth Amendment provides guarantee to a public trial, to ensure the accused is dealt with fairly. Stated by the Supreme Court in Estes v. Texas: –“Clearly the openness of the proceedings (the trial) provides other benefits as well (as a safeguard against oppression): it arguably improves the quality of testimony, it may induce unknown witnesses to come forward with relevant testimony, it may move all the trial participants to perform their duties conscientiously, and it gives the public the opportunity to observe the courts in the performance of their duties and to determine whether they are performing adequately.” Public Trial Estes v. Texas

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 While guarantee to a public trial appears on the surface to be clear & explicit, it is not without complications. –what constitutes public trial is not defined by the Sixth Amendment or by any of the laws of the states It is clear that a public trial is one that is not secret. –commonsense interpretation of public trial is one the general public is free to attend, and doors of the courtroom are kept open Public Trial What Makes a Trial Public? Female prosecutor addresses the court during an arraignment, Santa Ana, Ca.

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 Courts have been far from unanimous in answering the question of public exclusion from the courtroom. The issue is whether the public may be excluded in any situation without violating guarantee to a public trial. –a question usually when a trial involved salacious testimony Two cases addressing exclusion of the public from trial were Richmond Newspapers Inc. v. Virginia and Globe Newspapers Co. v. Superior Court for the County of Norfolk. Public Trial Public Right to Attend

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 The Court in Richmond Newspapers recognized that the right of press & public to access to criminal trials was based on the First Amendment of the Constitution. –not the Sixth Amendment right to a public trial After three mistrials, due to interference by spectators, the defense requested, and the prosecution voiced no objection to, a closed trial –under Virginia statutes, the judge granted the request to close the courtroom to the press and the public Richmond Newspapers, Inc., filed an objection, and the Virginia Appellate Court upheld the judge’s ruling. Public Trial Closing the Trial - Richmond Newspapers

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 case was appealed to the US Supreme Court on grounds that First Amendment freedom of the press had been violated by barring the press from the trial. The Court noted the First Amendment doesn’t mention the right of public access to a criminal trial explicitly –but is broad enough in scope to encompass certain rights not specifically mentioned, inlcuding access to criminal trials. The Court stated: –“Underlying …right of access to criminal trials …is the common understanding that a major purpose …was to protect the free discussion of governmental affairs.” Public Trial Closing the Trial - Richmond Newspapers

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 Richmond Newspapers concern closing the entire trial. –leaving question of whether press & public can be excluded from a portion of the trial The Court discussed this in Globe Newspapers: –“Although the right of access to criminal trials is of constitutional stature, it is not absolute.” –“…circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one.” –“… it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Public Trial Closing a Portion of a Trial - Globe

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 In Gannett Co. v. DePasquale the US Supreme Court held that press & public may be excluded from pretrial hearings, such as a pretrial hearing on the suppression of evidence or a preliminary hearing. Gannett upheld exclusion based on grounds that adverse prepublicity could pose a risk to the defendant and prevent a fair trial. Public Trial Public Exclusion from Pretrial Hearings Associate Justice Harry A. Blackmun, was appointed to the Supreme Court by President Richard Nixon and served from 1970 to 1994.

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 Court noted there is a difference between the trial itself and pretrial hearings, and case stated: –“Publicity concerning pretrial suppression hearings …poses special risks of unfairness.” –“… purpose of such hearings is to screen out unreliable or illegally obtained evidence and ensure that this evidence does not become known to the jury.” –“Publicity …could influence the public opinion …and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.” –“This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial.” Public Trial Public Exclusion from Pretrial Hearings

31. 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 Public Trial Public Exclusion from Pretrial Hearings Former middle school teacher Debra Lafave, 24, with her attorney John Fitzgibbons, before a hearing at Hillsborough County Courthouse in Tampa, Florida. LaFave pleaded guilty to lewd behavior with a teenage boy and was placed on probation. As part of her probation, Lafave was to abstain from contact with minors under eighteen years of age. As a general rule, a court will not allow a closed hearing without a strong showing of prejudice to the requesting party.

32. 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 may be concluded the public is entitled to know justice is taking place during a criminal trial. –therefore, with some reservations, permitted to attend trials As not all members of the public may be able to attend, the media have assumed responsibility of informing the public about what takes place during certain trials. The problem arising is how far the news media may go in obtaining information and reporting it to the public –courts & media are often in conflict over this question Public Trial Fair Trial versus Freedom of the Press

33. 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 When the courts attempt to curtail the media, the media allege violation of their First Amendment. Courts, on the other hand, hold that an accused is entitled to fair trial by an impartial jury. –and when that right is interfered with by the media, they have exceeded their prerogative Because of the right of the public to be informed, the courts generally have permitted reporters to be present during criminal trials. Public Trial Fair Trial versus Freedom of the Press

34. 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 Courts concede that when news gathering during trial becomes disruptive or denies the defendant a fair trial by an impartial jury, some control must be exercised. The Supreme Court has stated: –“…the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective.” –“…experience teaches that there are numerous situations in which it might cause actual unfairness, some so subtle as to defy detection by the accused or control by the judge.” Public Trial Fair Trial versus Freedom of the Press

35. 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 After Estes, courts generally prohibited live coverage. –but media eventually renewed pressure for it Regardless of strong arguments against it, more and more courts are permitting live trial coverage. Great strides have been made to protect victims in rape cases from embarrassment during trial, to encourage victims to come forth and report such offenses. It is believed, due to live coverage of trials, many victims of all types of crime will not report offenses. –rather than face testifying before television cameras Public Trial Fair Trial versus Freedom of the Press

36. 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 1996, the nation watched the televised trial of O.J. Simpson. As in the results of the coverage of that trial, many in the justice system are seriously concerned about the effects such coverage. –not only from the stand- point of the defendant, but also concerning the safety of witnesses Public Trial Fair Trial versus Freedom of the Press Prosecutor Hank Goldberg pleads his case to Judge Lance Ito in Los Angeles, California District Court after he was admonished for wasting time.

37. 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 aware that media is entitled to report events during a trial, courts have periodically issued orders limiting information given to the press. “Gag orders,” are issued to prevent pretrial/trial publicity that could deny a defendant a fair trial –because of the resulting difficulty in selecting and maintaining an impartial jury The media have strongly protested gag orders on the grounds that such orders violate the First Amendment. –balancing the right of fair trial with freedom of the press has continually plagued the courts Public Trial Gag Orders

38. 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 Sheppard v. Maxwell the Supreme Court criticized a trial judge for the failure to restrain pretrial publicity. –Dr. Sheppard was accused of killing his wife Prior to the trial, there were numerous newspaper stories concerning the questioning of the accused. –articles about his personal life and love affairs were published –the jury list was published; many prospective jurors received telephone calls concerning the case –inaccurate news releases were given by the police –the judge, up for election, allowed extensive live news coverage of the trial Public Trial Gag Orders - Sheppard v. Maxwell

39. 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 Sheppard, convicted, appealed to the Supreme Court on grounds that due process of law had been denied. The Court reversed the conviction, feeling the pretrial publicity & live coverage prevented a fair trial. The Court stated –“The courts must take steps by law and regulation that will protect their processes from prejudicial outside interference.” –“Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.” Public Trial Gag Orders - Sheppard v. Maxwell

40. 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 Court, in Sheppard, stated trial judges “have the duty of so insulating the trial from publicity as to insure its fairness,” –but did not fix rules to guide the trial judges and others on what could and could not be printed In Nebraska Press Association v. Stewart, the Court discouraged, but did not rule out, the use of gag orders: –“This Court has frequently denied that the First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.” Public Trial Gag Orders - Sheppard v. Maxwell

41. 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 less restrictive measure suggested instead of issuing a gag order was the granting of a change in venue. –many crimes receive such extensive publicity that change in venue would accomplish little Under these circumstances, judges may still issue gag orders & undoubtedly receive Supreme Court sanction. Public Trial Gag Orders - Sheppard v. Maxwell

42. 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 bench or court trial is a trial by judge alone. The Sixth Amendment right to a jury trial applies to all federal criminal proceedings. States may deny an accused a jury trial in cases involving petty offenses. Petty offenses are defined by the Supreme Court as offenses for which the maximum period of confinement is six months and a fine of not more than $500. Important topics for this chapter… SUMMARY

43. 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 defendant may not demand a bench or court trial. In noncapital cases, a defendant may be tried by a jury of fewer than twelve persons, depending on state laws. If there are fewer than twelve jurors, in most states the verdict must be unanimous. A public trial is a trial in which the public has a right to attend. The public has a limited right to attend criminal trials. Important topics for this chapter… SUMMARY (cont.)

44. 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 First Amendment gives the press a limited right to attend a criminal trial. A trial judge may issue a gag order that directs the parties to the trial not to talk to the press or otherwise release information that would jeopardize a fair trial. Important topics for this chapter… SUMMARY (cont.)

45. Chapter End