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C J 2019

First Edition

Chapter 8

Courtroom Participants and the Trial

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The Adjudication Process (1 of 2)

A criminal trial is a complex event involving many participants

Many do their work behind the scenes

Public’s perception of trial is strongly influenced by media

Some are complete fiction

Despite importance and complexity, most only last a couple of days

Legal philosophy of American criminal justice system is that trial is a combative encounter between the state and defendant

The Adjudication Process (2 of 2)

Trials seek to establish guilt of defendant and, if guilty, determine proper sanctions

Trials are complex because many agencies and personnel must interact in pursuit of justice

Often parties in trail are in conflict with each other, so there is no guarantee the process will go smoothly

Police, prosecutors, defendants, and even victims have various roles in the process

Jurisdiction

Criminal trials occur in the jurisdiction of the law that was violated

Trial locations are also determined by the appropriate court of the jurisdiction

Federal felonies tried in federal district court

Jurisdiction usually means some part of crime was committed within the geographic jurisdiction of the district court

Trial Courts of Limited Jurisdiction (1 of 2)

Trials usually concern misdemeanor crimes, violations of traffic offenses, and lesser offenses

In typical case

Defendant is arrested by police and appears before court for trial within few weeks

Often the defendant is not guaranteed the right to attorney because punishment does not exceed threshold at which protections attach

For most part, these trials are simple affairs

Entire trial may last only minutes

Trial Courts of Limited Jurisdiction (2 of 2)

Scheduling of trials is simple

Many defendants are given same trial date and time

Court starts the day with first case and proceeds through others as time permits

These are not jury trials

Judge renders immediate decision following conclusion of arguments

Defendant has right to appeal decision

Each court has own distinct procedures

Trials in Courts of General Jurisdiction and Federal District Courts (1 of 2)

Most felony trials occur in these courts

Number of state felony trials is much higher than number of federal felony trials

Trial procedures for both state and federal courts of general jurisdiction are similar

One of the first decisions made when person is arrested is issue of curt jurisdiction

General guidelines for determination

Trials in Courts of General Jurisdiction and Federal District Courts (2 of 2)

Crimes that occur under both state and federal jurisdiction

Not double jeopardy for state and federal government to try someone for same crime committed in both jurisdictions

Kidnapping and murder crossing state lines

Ability to try defendant in both jurisdictions can act as checks and balances in the system

Charges and Proceedings before Trial

Constitution requires citizens be informed of charges against them before they are tried in court of law

First step is arrest and booking of suspect

Formally charges person with having committed a crime

Process of bringing person to trial involves joint activities of prosecutor and police

Many steps occur during booking and arraignment

One is to determine where arraignment will occur

Determining the Charges: The Police and the Prosecutor, Prosecutorial, and Due Process

The Police and the Prosecutor

When person is first arrested, law enforcement officer files report charging the person with crime(s)

After booking, magistrate reviews the charges filed and determines if police have provided individual with constitutional rights

Prosecutor has final authority in determining the charges and prosecuting the defendant

Due Process

Defined

Prosecutor is responsible for presenting this evidence

Determining the Charges: The Police and the Prosecutor-Prosecutorial Discretion (1 of 2)

Police arrest and booking is no guarantee that the prosecutor will see same merit in the case

Prosecutor may decide there is not sufficient evidence to proceed to trial

Data vary by state as to what percentage of cases move forward in the system

Bureau of Justice Statistics data

Also common for the prosecutor to modify the charges before moving case forward

Determining the Charges: The Police and the Prosecutor-Prosecutorial Discretion (2 of 2)

Prosecutor has following options

Dropping some or all of the charges

Adding additional charges

Reducing the charges

This power of the prosecutor is called prosecutorial discretion

Prosecutor also exercise power in preliminary hearing and with regard to information, indictment, and arraignment

Determining the Charges: The Police and the Prosecutor—Relationship between Prosecutor and Law Enforcement

Law enforcement and prosecutor are each autonomous agencies, but without cooperation, it is difficult to achieve successful prosecution

After arrest by police, prosecutor has very short time, usually 48–72 hours to decide whether to proceed

Relationship is important at this point

In some major cases, police and prosecutor work together prior to arrest of suspect

Prosecutor may use grand jury to obtain indictment

Defined

Determining the Charges: The Police and the Prosecutor—Arraignment

Prosecutor must present evidence at arraignment that defendant should be tried for the offense

This is final stage before the trial

Charges filed at this time are those on which defendant will be tried

This is first time defendant is asked to formally declare a plea

At hearing, prosecutor must choose how much evidence he or she should present to convince court to hold defendant over for trial

Competency to Stand Trial (1 of 2)

Prior to trial, court must determine competency of defendant to stand trial

Competent to stand trial defined

For most cases, this issue is not raised

No reason to suspect defendant is not competent

Competency usually determined by ruling of magistrate judge

Health is one of the most common reasons defendant may not be competent

Competency to Stand Trial (2 of 2)

Declaring defendant not competent is a temporary ruling

Trial will resume once defendant is found competent

In some cases, defendant may never be deemed competent to stand trial

Charges indefinitely suspended

Some may receive diversion

Finding of incompetence does not mean defendant is insane

Insanity is an affirmative defense that must be proved at trial by defense

Bail (1 of 2)

Mechanism for providing pretrial release

Has roots in English history and has been used since before Norman Conquest of 1066

Prisoners placed with private parties who would guarantee their delivery to court

Custodians would sign a bond (private surety)

If they failed to produce prisoners on trial date, they forfeited specified sum of money or property

New American government adopted variation of this pretrial procedure

Bail (2 of 2)

Eighth Amendment recognized concept of bail

Specified excessive bail should not be required of accused

Bail defined

Traditional method of guaranteeing appearance is to require cash bond or some property of value1

Eighth Amendment does not guarantee bail will be granted, only excessive bail should not be required

U.S. Supreme Court has interpreted this amendment to mean defendant does indeed have right to bail2

¹ Bail is not required in a civil trial because the court has no jurisdiction to incarcerate either party of a civil suit prior to trial.

² Hudson v. Parker, 156 U.S. 277 (1895).

Bail: Excessive Bail

U.S. Supreme Court has declared it must be based on standards relevant to guaranteeing defendant will not take advantage of his or her freedom and flee prior to trial1

No standard limits of excessive apply to all cases

Court determines each case based on totality of circumstances

Factors considered

Bail considered at various stages in the criminal justice system and is a revocable court decision

¹ Stack v. Boyle, 342 U.S. 1 (1951).

Bail: Denial of Bail

Bail is not absolute guarantee

Under some circumstances, defendants can be denied bail1

Most common use of denial of bail

The 1984 federal Bail Reform Act provided authority to federal judges to deny bail based on danger of defendant to community2

For misdemeanor offenses, bail set based on fixed fee schedule3

For felonies, bail determined by judge at bail hearing

¹ Carlson v. Landon, 342 U.S. 524 (1952); and United States v. Salerno, 55 U.S.L.W. 4663 (1987).

² Bail Reform Act of 1984, 18 U.S.C. 4142(e).

3 U.S. v. Hazzard, 35 CrL. 2217 (1984); and United States v. Motamedi, 37 CrL. 2394, CA 9 (1985).

Bail: Discrimination Against the Poor

If required to post cash bond, low-income defendants are not going to have access to right of bail due to the lack of available money

Without money or property, the poor are likely to remain incarcerated prior to trial

May spend more time prior to trial than length of sentence received at end of a trial

Time served usually credited

Accused who are not incarcerated have better chance to assist in their defense

The poor may not receive same quality of justice as rich

Bail: The Bail Bonds Agent (1 of 2)

Defined

Not a state or federal employee, but rather a private party operating a for-profit business

Four states have abolished commercial bail bonds

Bail responsibility of courts in those states

Bail bonds agent acts as intermediary and posts bond for accused

For a fee from accused, agent guarantees court that defendant will show up for all court dates

Fee is usually 10% of bond and is nonrefundable

Bail: The Bail Bonds Agent (2 of 2)

Bail bonds companies can refuse to write a bond if defendant poses a risk

Defendant is responsible for securing bail bonds agent to post bail

Not uncommon for many agents to set up shop as close to jail or courthouse as possible to increase chances defendant will use them

Bail: Bond Jumpers and Bounty Hunters

A person who fails to appear for a court appearance is said to have “jumped bond”

When person jumps bail, court allows bonds agent certain amount of time to return defendant to custody of court before revoking posted bond

Considered agents of the court when they post bond

Bonds agent can use any means necessary to return person to jurisdiction of court

Rules limiting police officers do not apply to them

Often called “bounty hunters”

Bail: Alternatives to Cash Bond (1 of 3)

There are criticisms of bail bond system and of conduct of agents in returning bond jumpers

Primary criticism is use of fee system that discriminates against the poor

Charges of institutionalized racism have led both federal and state courts to implement number of alternatives to cash bond system

Release on recognizance (R O R)

Defined

Success of program has led many states to adopt use

When it is most appropriate

Bail: Alternatives to Cash Bond (2 of 3)

Unsecured bond

Defined

Allows defendant to be released on his or her promise to return to court for trial after signing promissory note

Signature bond

Defined

Commonly used for minor offenses

Similar to R O R but much simpler

No prequalifications and no assessment of flight risk or danger to community is made

Bail: Alternatives to Cash Bond (3 of 3)

Conditional release

Defined

Requires defendant to agree to number of court-ordered terms and restrictions

Must report to officer of court at regular intervals

Third-party custody

Allows court to release defendant into custody of individual or agency that promises to be responsible for defendant’s behavior and ensure return for trial

Most common third-party is a family member

Bail: Pros and Cons of Bail

Some who are arrested remain in jail awaiting trial

For these people, 1–30 days or more can be a significant burden

May seem unfair and unnecessarily punitive

Defendants who cannot make bail will suffer additional harms

May lose their job, which can lead to loss of housing and family support

Will not have money to pay for defense or court costs

May miss other opportunities

Plea Bargaining

Another pretrial activity

Plea bargaining defined

97% of federal cases and 94% of state cases are disposed of by this method without ever going to trial1

Both police and victim often object to this practice

Offender not punished to fullest extent of the law

Often would like to see defendant prosecuted on most serious charges

Despite views, prosecutors often decide to offer defendants opportunity to plead to lesser charges

¹ Erica Goode, “Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals,” The New York Times Online, March 22, 2012. Web posted at http://www.nytimes.com.

Plea Bargaining: Time and Cost

One reason for use of plea deals is that trial preparation is a time-consuming and costly endeavor

Prosecutor bears responsibility for trial preparation and costs associated

Most only have limited staff and budget and cannot take every case to trial

Prosecutor’s office must select which defendants to take to trial and which to offer plea bargains

Many offenses settled by plea bargain

Integral part of process because it keeps costs down

Plea Bargaining: Community Interest

In deciding whether to offer plea bargains, prosecutors must make decision as to how best to serve community interests with limited resources

Plea bargains guarantee guilty verdicts

Prosecutors win convictions in approximately 80% of cases taken to trial, but would not be able to devote personnel and resources necessary without plea bargains

Irony is that career criminals seem to benefit more from plea bargaining than minor criminals or the innocent

Plea Bargaining: Clearing Cases

Defined

One reason prosecutors may decide to plea bargain

What is gained

Allows reporting of higher clearance rate of cases to the public

Prosecutor knows that even if defendant is convicted of multiple offenses, he or she may end up serving concurrent sentences

Extra time and effort required to obtain convictions may make little difference in actual outcome

Plea Bargaining: Questionable Confidence in the Case

Prosecutor may not be completely confident of the case he or she has to present at trial

Can be based on number of factors

Strength of evidence

Shaky witnesses

Any number of reasons may make prosecutor reluctant to take case to trial

Plea Bargaining: Initiation of Plea Bargaining

Can be initiated by prosecutor or defense attorney at different points in the process

Up until jury renders a verdict

Plea bargaining can center on the charges or the sentence

At arrest, defendant is typically charged with as many crimes as possible, beginning with the most serious one

Defendant may offer guilty plea in return for dropping more serious charges

Plea bargaining for testimony is risky

Plea Bargaining: Sentence Bargaining

Defined

Defendant seeks leniency

May offer plea in return for recommendation to judge for minimum sentence

Some defendants want to negotiate where time will be served, what type of facility or security level it is

Prosecutors can control bargaining for reduction of charges directly, but judge has control of sentencing

Process frequently involves negotiation

Judge must ultimately approve any plea

Plea Bargaining: Effective Counsel in Plea-Bargaining Law (1 of 2)

Court in Gideon v. Wainwright (1963) did not include right to counsel at pretrial negotiations

Missouri v. Frye (2012) and Lafler v. Coope (2012)

Court extended right to effective counsel to include counsel during plea negotiations

Cases are controversial in that they seem to guarantee defendant to most favorable outcome possible1

Concern highlighted by tendency for longer mandatory sentencing

¹ Steven J. Harper, “Too Many Law Students, Too Few Legal Jobs,” The New York Times, August 25, 2015, p. A19.

Plea Bargaining: Effective Counsel in Plea-Bargaining Law (2 of 2)

Many states have adopted harsh penalties that make plea bargains appear “attractive”1

Phenomenon referred to as trial penalty

In some jurisdictions, gap has widened so much that it has become coercive and used to punish defendants for exercising right to trial, some experts say2

Given this concern, constitutional right to effective counsel during pretrial negotiations is critical to ensuring justice and due process

¹ Erica Goode, “Stronger Hand for Judges in the ‘Bazaar’ of Pleas Deals.” The New York Times, March 22, 2012. Web posted at https://www.nytimes. com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html.

² Ibid.

The Right to a Speedy Trial (1 of 2)

For case to come to trial, it must be placed on court docket, or calendar

All parties must know when case is scheduled for trial and how long trial is expected to last

Defendants released on bail, especially when guilty, may want to postpone day in court as long as possible

Actual time defendant must wait for his or her day in court not left to defendant or government

Sixth Amendment guarantees right to speedy trial, but does not define what constitutes “speedy”

The Right to a Speedy Trial (2 of 2)

Right to speedy trial is not same as statute of limitations

Statute of limitations is length of time between discovery of crime and arrest of defendant

Various crimes have different acceptable lengths of time between crime and arrest

Usually, less serious crimes have shorter period for prosecuting defendant, and more serious crimes have longer periods

Customarily, there is no statute of limitations for crime of murder

The Sixth Amendment Right to a Speedy Trial

Before 1967, states did not have to provide speedy trial unless guaranteed by state constitution1

Definition of speedy trial differed substantially among states

States ranged from less than two months to years after defendant was arrested

Initially, Supreme Court did not provide specific guidelines to help determine what constitutes speedy trial

Court took view that speedy trial is relative matter and may vary in length of time from arrest to trial because of circumstances of case2

¹ Klopfer v. North Carolina, 386 U.S. 213 (1967).

² Beavers v. Haubert, 1998 U.S. 77 (1905).

The Sixth Amendment Right to a Speedy Trial: Klopfer v. North Carolina

Judicial interpretation of right to speedy trial changed dramatically in late 1960s and early 1970s

Beginning with case of Klopfer v. North Carolina (1967)1

Court extended speedy trial right to state courts

Many states then adopted speedy trial legislation

Barker v. Wingo (1972)2

Court issued ruling that defendant’s failure to demand speedy trial does not amount to a waiver of the right

¹ Klopfer v. North Carolina, 386 U.S. 213 (1967).

² Barker v. Wingo, 407 U.S. 514 (1972).

The Speedy Trial Act of 1974

After rulings in previous cases, prosecutors had to be mindful of bringing all cases to trial in timely manner or risk losing ability to prosecute

Speedy Trial Act of 1974

Required specific deadline between arrest and trial in federal courts

Required defendants to be brought to trial within 100 days of arrest, clock may stop for necessary delays

Prosecutor has 30 days from arrest to seek indictment or formally charge defendant, and then 70 days after that to proceed to trial

Rules of Evidence (1 of 2)

Govern process of the criminal trial

Deviation from rules constitutes judicial error that leads to appeals

Each state court and the federal courts have different rules of evidence

Attorneys required to demonstrate competent knowledge of rules for court to hear a case

May have to take examination on rules of evidence

Regulate nearly every aspect of a trial

Rules of Evidence (2 of 2)

Can be mundane

Determine what evidence is: relevant, permissible, cannot be introduced, among other requirements

If prosecutor or defense counsel, during trial, believes a rule has been violated, he or she has duty to raise objections to judge

Examples of objectives

Judge either agrees or disagrees with objection

After trial, case can be appealed in either side believes judge made judicial error

Duties and Rights of Participants: Power of the Judge

Power lies in absolute and immediate ability to fine or imprison people for contempt of court

Contempt of court defined

Who can be found in contempt

Reasons for contempt

Penalties contempt can bring

Gag order

Defined

Area where media might run afoul of the judges and can be held in contempt if violated

Duties and Rights of Participants: Bench Trial

Judge’s role can be complicated in a bench trial

Trial where judge, not a jury, determines guilt or innocence of a defendant

Judge must act as impartial mediator and at conclusion make determination of guilt

Some states prohibit bench trials in cases involving serious felonies

Duties and Rights of Participants: Courtroom Security

Provided by sheriff’s deputies in state courts and by deputy U.S. Marshals in federal courts

When acting in role of courtroom security, both are called bailiffs

Parties before court are often emotionally charged

Judges and court personnel often express concerns that security may not be adequate to ensure safety

Although security checkpoints and metal detectors enhance security of court, there is still ever-present threat to court personnel

Duties and Rights of Participants: The Defendant

Defendant does not have to testify during trial

Defendant may actively assist his or her attorney or may remain passive during trial

If court deems defendant competent, even defendant has no formal legal training or license, in some cases, he or she may represent himself or herself

In some states, even if defendant represents himself or herself, attorney is appointed to assist defendant in his or her defense

Courts discourage defendants from representing themselves

Duties and Rights of Participants: Indigent Defendants

When charged with crime, judge inquires as to the defendant’s ability to afford an attorney

Those indicating they cannot afford attorney required to complete financial statement and submit it to court

Court examines finances and decides if defendant is eligible for indigent defense

About half of all criminal defendants accused of a felony crime cannot afford an attorney

For larger counties, number increases to 80%1

Indigent defense services represent substantial expense in the criminal justice system.

¹ Bureau of Justice Statistics, Indigent Defendants (Washington, D.C.: Bureau of Justice Statistics, February, 1996).

Duties and Rights of Participants: Jury Service

Jurors are citizens required by law to perform jury duty

Court wants jurors who are fair, competent, and able to serve

Process of jury selection is known as voir dire

French phrase meaning “to see to speak”

Involves questioning of prospective jurors as to potential biases held or other conflicts that might prevent them from being impartial

Major challenges for court include selecting fair and competent jury and deciding whether excuses given by citizens who do not want to serve are legitimate

Duties and Rights of Participants: Jury Service—Jury of One’s Peers

Constitution requires defendants be tried by jury of their peers

Supreme Court has not interpreted this literally, however

Jury pool is selected from broad base of citizens who are representatives of community, not specific characteristics of defendant

Many jurisdictions have used voter registration lists as pool from which to select jurors

Current practice is to select jurors from more representative sources

Duties and Rights of Participants: Jury Service—Exemptions from Jury Duty (1 of 2)

Citizens are paid for jury duty by government

Rate of pay is very low, ranging from only a few dollars to $40 per day

Most jurors serve for short periods but may be asked to serve longer; for some jurors, even a few days impose a severe hardship

Some citizens may not be competent to serve as juror

For these and other reasons, court may excuse citizens from jury duty

Duties and Rights of Participants: Jury Service—Exemptions from Jury Duty (2 of 2)

Each jurisdiction determines rules for excusing citizens from jury service, but rules must not discriminate

Taylor v. Louisiana (1975)1

Supreme Court decided exclusion of women from jury duty created imbalance in jury pool and was not justified

Legitimate reasons for being excused from jury duty

Most jurisdictions require jury service only once a year

¹ Taylor v. Louisiana, 419 U.S. 522 (1975).

Duties and Rights of Participants: Jury Service—Jury Requirements (1 of 2)

Court must ensure that those who are called do serve

As result, there are penalties for those who unlawfully avoid jury duty and for anyone who interfere with, intimidate, or threaten citizens to prevent them from fulfilling their civic duties

Constitution does not require jury of 12 people

Number is a tradition but not a legal requirement, and obtaining 12 people to serve on a jury can be a challenge

Duties and Rights of Participants: Jury Service—Jury Requirements (2 of 2)

Some states have reduced the number of jurors required for a trial

All states require 12 jurors for capital (death penalty) cases, and all but 6 states require 12 jurors for felony trials

Fourteen states allow misdemeanor trials with only 6 jurors

Other states allow criminal trials with a jury of 7 or 8

Conclusion: Justice Is the Goal

Police charges against defendant are merely suggestions to the prosecutor

Over 90% of those charged with felony crimes choose to plead guilty

Procedure and rules of trial are well defined, but strategy and risk that go into decision-making and presentation of evidence are left to professional judgment of participants in the trial

Despite differences among various courts, all work toward a common objective—justice

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