THE CRIMINAL THE CRIMINAL TRIALTRIAL

ENGLISH HISTORYENGLISH HISTORY

Early English trials - group of people attest to accused’s honor and innocence or torture by water or fire, if survive considered innocent;

- Magna Carter 1215 - granted freemen right to trial by peers

CONSTITUTIONAL RIGHTS PERTAINING TO CRIMINAL

TRIAL 6th Amendment right to

impartial jury included to prevent the English type secret trial done by Star Chamber;

right to jury trial applies to states thru 14th

RIGHT TO COMPULSORY PROCESS

subpoena power to obtain witnesses for the defense

RIGHT TO PUBLIC TRIAL

right to a speedy and public trial means a trial in which the public can attend;

First amendment right to press and public to attend trial;

no defendant right to a private trial;

RIGHT TO TRIAL BY JURY

serious crimes (punishment involves more than 6 months in prison) defendant can request a jury trial;

defendant can waive right in opening court;

government cannot request a jury trial;

JURY REQUIREMENTSJURY REQUIREMENTS

Anonymous Juries: normally members of jury are known; it special cases may be proper to keep members of jury unknown;

Composition of Jury Trial: common law juries were 12 persons; a jury of less than 12 found constitutional; 6 minimum okay for misdemeanors;

Jury verdict: most states require unanimous; U.S. Supreme Court held that none unanimous is okay in 12 person jury but not in 6 person jury

RIGHT TO COUNSEL every defendant has right to

represent self prose - on own behalf; Judge has to determine that

defendant understands how to conduct a trial and must knowingly and voluntarily waive right;

Judge has discretion to appoint stand by counsel to assist defendant;

Defendant has right to conflict free counsel and right to confer with counsel during the trial;

JURY SELECTION

state and federal statutes have juror qualifications: 18 and registered voters, driver’s license list;

Venire: body of persons summoned for jury duty

Voir Dire: the questioning of prospective jurors as to whether they should be on the jury;

VOIR DIRE

questioning done by trial judge and or attorneys;

members of venire who are not selected after questioning are excused for cause or peremptorily;

. PEREMPTORY CHALLENGES OF JURORS

not selecting a prospective juror without stating a reason;

each side has a limited number of challenges;

Race based challenges - court ruled violation of 5th equal protection to excuse a person because of his or her race;

Batson violation Gender based challenges - also improper

to excuse a person because of sex

FREE PRESS VERSUS FAIR TRIAL

1st amendment right for press and public to attend trials, that right can not deprive a defendant of a fair trial

Sheppard case Supreme court found that publicity before and during the trial denied defendant of a fair trial where the jury was subjected to news stories;

IN THE COURTROOMIN THE COURTROOM

federal courts still do not allow cameras in courtroom, while most states do now (not Illinois)

respect for the courtroom is required by all parties – order in the court

court can use its various methods to keep order in the courtroom - contempt power, removal of defendant, physically restraining the defendant

BEHAVIOR OF COUNSEL

lawyers are required: - follow legal and ethical

rules - follow trial procedures - follow courtroom decorum Failure to follow rules can result

in contempt citations, reports to bar assocs.

RULES OF EVIDENCE

The rules regarding how and what type of evidence is admitted at trial

JUDICIAL NOTICE: facts of general knowledge

PROOF BEYOND REASONABLE DOUBT: highest burden of proof, moral certainty of; no set definition

EVIDENTIARY PRESUMPTIONS

irrebuttable presumption: taken as true

permissive : one proven fact, can be used to infer another fact it connect is rational

SIMILAR FACT EVIDENCE

facts similar to the facts in the offense charged are admissible if relevant and probative: other crimes

Relevancy – must be relevant to offense to be admissible

CLASSIFICATIONS OF EVIDENCE

Real: physical such as weapons, contraband, blood, clothing

Direct : eyewitness Indirect: circumstantial Testimonial: sworn statements

from witnesses

WITNESSWITNESS COMPETENCY

competency is presumed unless young child, mental incompetent person

EXPERT WITNESSES - one who is expert in a field: forensic, psychologist, etc.

HYPNOTICALLY ENHANCED TESTIMONY -- not considered reliablePOLYGRAPH EVIDENCE - lie detector results are not considered reliable so not admissible to prove true of matter

SCIENTIFIC EVIDENCE IN COURTROOM - must be found reliable under Frye or Daubert test

DNA EVIDENCE - genetic fingerprinting, considered admissible

OBJECTIONS

the request by counsel to the judge to find that the evidence being offered should not be considered by the trier of fact

general - goes just to relevancy specific - made on other

evidential reasons - hearsay, privileged

EVIDENCE TYPESEVIDENCE TYPES

Hearsay: out of court statement offered in court by another for the truth of the matter asserted;

Best Evidence: original documents are required

Opinion: can not give an opinion not based on personal knowledge

PRIVILEGED COMMUNICATIONS

because of a certain recognized relationships conversations/statements made can not be introduced at trial

Attorney-client Marital Clergy Doctor-patient when made for

purpose of treatment

TRIAL PROCESS

trial judge: umpire of trial and or trier of fact, rules on what is the law, controls the courtroom;

state: present witnesses and has duty to be fair to defendant also

Defense: cross-examine state’s witnesses and hold state to its burden;

Motion to exclude witnesses: only defendant may be present when witnesses testify;

OPENING STATEMENTS

information given to jury as to what the evidence will be in the case; not done much in bench trials

PROSECUTION CASE

state/government has burden of proving guilt beyond a reasonable doubt so have to present evidence through witnesses, stipulations as to elements of offense;

RIGHT TO CONFRONTATION & CROSS-EXAMINATION

defendant has constitutional right to have any witnesses give their testimony in his presence and to question the witnesses as to their knowledge, bias, motive, etc.

Questioning of Witnesses: leading only on cross exam

Impeachment: attacking the credibility of the witness

DEFENSE STRATEGY IM MOVING FOR JUDGMENT OF

ACQUITTAL

after state has presented its case, if believe state has not met its burden of proof will ask court to find accused not guilty;

DEFENSE CASE

no duty or burden to present witnesses but can do so; will need to do so when presenting certain defenses, such as alibi;

defendant has a right to testify on his own behalf, makes himself subject to cross exam by state;

REBUTTAL

state can call witnesses to rebut testimony from defendant witnesses;

CONDUCT OF JURY DURING TRIAL

duty to listen to all the evidence and not decide as to guilt or innocent until instructed by judge to do so

CLOSING ARGUMENTS

the evidence presented at the trial is reviewed and inferences are suggested to the trier of fact - jury or judge;

state can not make improper remarks, can result in new trial for defendant

JURY INSTRUCTIONS CONFERENCE

the elements of the offense and the rules regarding how the jury is to consider certain evidence is written out and both sides must meet with judge to agree as to the instructions; any instructions given that are wrong and objected to by the defendant could result any a conviction being reversed on appeal;

defense has right to instruction of his defense;

JURY INSTRUCTIONS The written instructions are read to the

jury by the judge general instructions, elements of

offense (s) charged, defenses, verdict forms;

jury only determines guilt or innocent in most states in non-capital cases

For capital cases, defendant can choice to have a jury determine if he should receive death sentence;

after jury instructions are read, alternates are released and do not deliberate;

JURY DELIBERATIONS & VERDICT:

first duty of jury is to select a foreperson;

given written copy of instructions and any admitted exhibits;

jury deliberates in private and secret; if necessary can sequester jury

DEADLOCKED JURY

if jury is unable to reach a verdict, judge can read a special instruction called ALLEN Charge in an attempt to get the jury to read a verdict or dismiss the jury and declare a mistrial;

VERDICT

jury must be unanimous in most states; verdict reached read in open court;

if guilt, defendant maybe taken into custody or allowed to remain on bail until sentencing;

if found not guilty, defendant is released

POLLING THE JURY- state or defense may request that each juror state in open court that it is his/her verdict

POSTTRIAL MOTIONS

motion for new trial; done before sentencing, defense

writes out and argues the errors that occurred at trial and that defendant entitle to a new trial