Criminal Justice Process: The Trial

1. Criminal Justice Process: The Trial Chapter 14 Street Law Text pp. 166-172

2. Right to Trial By Jury • Due Process- All citizens are entitled to a fair hearing or trial by the 5th & 14th Amendments • The 6th Amendment guarantees the right to a trial by jury in both state and federal courts • Most cases though do not have a jury, either because of the seriousness of the crime, or by the defendant waving- giving up their right to trial by jury in favor of a “bench” trial • Juries, when used, are selected by voter registration/drivers registrations/state ID’s [in Nebraska] • Voir Dire- Questioning of potential jurors– usually for bias in a case • For Cause Challenge- Removal because of bias or another factor • Peremptory Challenge- Removal because of no specific reason

3. Right to a Speedy and Public Trial • The 6th Amendment provides the right to a Speedy and Public Trial, the most difficult of these two guarantees is the speedy part, what is speedy? No one really knows, but courts have found that a “reasonable” amount of time must be allowed for both sides to prepare a case • The public part is easier, all trials are open unless a closed trial is requested and granted, except all juvenile trials are usually closed

4. Right to Compulsory Process and to Confront Witnesses • Defendants have the right to Subpoena- [court order to appear and testify] witnesses to testify in court • Defendants also have the right to face their accuser[s] and to cross examine them. There are limits in place to protect some witnesses, like children. • A defendant does have the right to be at their own trial but can lose that privilege if they are disruptive to the court, in some instances they can be removed or even bound and gagged. • Contempt of Court- An act to embarrass, hinder, obstruct, or disrupt court proceedings

5. Freedom from Self-Incrimination • You can not be forced to testify against yourself, is a right granted by the 5th Amendment, it applies to all defendants and if a defendant uses their 5th Amendment rights the prosecution can not make any comments to a judge of jury speculating why the 5th Amendment has been invoked • Immunity-Freedom from; protection from, being sued or prosecuted, in exchange for testimony • If a person is granted immunity, they must answer all questions, the 5th Amendment does not apply, because they have waived that right

6. Right to an Attorney • The 6th Amendment provides that “In all criminal cases, the accused shall enjoy the right to… have the assistance of counsel for his defense” • This applied to federal cases only until 1963 Gideon v. Wainwright when the Supreme Court applied it to states as well, then in 1972 it included anytime a defendant might be sentenced to incarceration. [felony or misdemeanor] • Indigent- Without financial means [poor] This is the standard in deciding if the court appoints and attorney or if the defendant must pay for their own • Many people argue that appointed attorneys do not represent their clients as well as privately hired attorneys because of the difference in pay… usually appointed attorney’s [paid by the state] are paid much less than privately hired attorneys

7. Criminal Appeals • If a “not guilty” verdict is handed down by a jury, the state cannot appeal because of Double Jeopardy- A defendant cannot be tried for a second time for the “same” crime [5th Amendment] • If there is a “guilty” verdict then sentencing follows [which is discussed in Chapter 15], but also there is the possibility of appeals • The defendant [through their attorney] can ask that the verdict be overturned by the judge or to declare a Mistrial- a retrial because of a mistake made during the initial trial– does not mean “not guilty”, just simply that there will be another trial. The defendant may also ask to appeal to a higher court • Appeals Courts determine questions of law while Trial courts determine questions of fact “guilt or innocence”

8. Cont. • So an Appellant/Petitioner- Person appealing a case to a higher court, must prove an “error of law” by the lower [trial] court. Most times an Appeals Court will uphold the lower courts ruling, unless there is a substantial “error of law”. The Supreme Court of the United States is the highest Appeals Court. • A defendant may also ask for a Writ- Order from a higher court [or Judge] to a lower court or a government official • An example would include a “Writ” to examine DNA evidence that was not available at the time of conviction • Most known “Writ” is the Writ of Habeas Corpus- which means to “Produce the body” and claims the defendant is being held illegally and requests release It forces law enforcement to appear before a Judge with the defendant and explain the charges against that defendant