1. Describe what the functions of the first appearance, the preliminary hearing, and the arraignment are.
    
2. Describe the grand jury’s role in the justice system, and explain why people call it the prosecution’s “little darling”.
    
3. Explain the role a motion to suppress plays.
    
4. Define the term voir dire, and distinguish between the terms peremptory challenge and challenge for cause.
    
5. Explain the purpose of the lawyers’ opening and closing statements at trial.
    
6. List the policy arguments for and against plea bargaining, illustrate the constitutional issues which are presented by the plea-bargaining process, and describe the conditions that must be fulfilled in order for a trial court judge to accept a defendant’s guilty plea.
    
7. Describe the role of the judge and jury in fixing criminal sentencing.
    
8. Recognize the importance of the plain error exception, the harmless error exception, and the automatic reversal rule.
    
9. Describe the important writ of habeas corpus in protecting rights and liberties.

 

SUMMARY: Following the first appearance, the next step typically is the preliminary hearing. The purpose of the preliminary hearing is to determine whether there is sufficient evidence to bind the defendant over for trial or, in the alternative, whether there is sufficient evidence to send the case to a grand jury. The preliminary hearing is conducted as a “minitrial” in which the defendant has a right to be represented by a lawyer. The basic question is whether a crime was committed and whether the defendant committed the crime. Most states adhere to the probable cause standard, while a minority of jurisdictions adhere to the prima facie approach. A preliminary hearing is not constitutionally required.

The grand jury constitutes between sixteen and twenty-three persons who provide a check on the prosecutor and determine whether there is sufficient evidence to proceed to trial. At the conclusion of the grand jury’s investigation, the grand jury may return a true bill and issue an indictment or refuse to indict and return a no bill, or the grand jury may decide to undertake an independent investigation of criminal activity and file a presentment, a report on criminal activity, with the court. The grand jury is, in theory, independent of prosecutors and judges but, in practice, possesses several powers that make it a particularly powerful arm of the prosecutor in investigating criminal activity.

Once the decision is made by the grand jury to indict an individual or by a preliminary hearing to bind a defendant over for trial, the next step is an arraignment. At the arraignment, a defendant is brought before a trial court judge and is informed of the charges filed against him or her and is asked to enter one of four possible pleas: guilty, not guilty, nolo contendere, or not guilty by reason of insanity.

Prior to trial, the defense attorney may file a number of pretrial motions including double jeopardy, speedy trial, venue, discovery, and motion to suppress.

Evidence seized in violation of the Fourth Amendment as well as unconstitutionally obtained confessions and identifications may be excluded from evidence.

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a . . . public trial by an impartial jury.” In 1968, in Duncan v. Louisiana, the U.S. Supreme Court held that the right of a jury trial in “serious criminal cases” is “fundamental to the American scheme of justice” and is protected under the Due Process Clause of the Fourteenth Amendment and “must therefore be respected by the States.” The Court held that a jury trial is required for “serious crimes” that carry a sentence of more than six months. The federal government and a majority of states require twelve-person juries. In 1970, in Williams v. Florida, the U.S. Supreme Court reversed course and held that the twelve-person requirement is not an indispensable component of the Sixth Amendment as incorporated into the Due Process Clause of the Fourteenth Amendment. Eight years later, in Ballew v. Georgia, the Supreme Court held that Georgia could not constitutionally conduct criminal trials with juries of fewer than six persons.

The jury pool, or venire from which a petit panel is drawn, typically is based on names drawn from voter registration lists or lists of licensed drivers, and several states rely on the key-man system. Individuals in the jury venire are subject to voir dire and may be struck from the jury based on a challenge for cause or based on a peremptory challenge. The Fifth Amendment Equal Protection Clause prohibits intentional discrimination based on race, ethnicity, gender, or religion in the jury-selection process. The Sixth Amendment requires that a jury be drawn from a fair cross section of the community. Individuals may be excluded during voir dire for cause based on an inability to fairly and impartially weigh the evidence. A peremptory challenge is a challenge that is exercised “without a reason.” In 1986, in Batson v. Kentucky, the U.S. Supreme Court held that the Equal Protection Clause prohibits a prosecutor from challenging potential jurors “solely on account of their race . . . on the assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant.” In 1994, the U.S. Supreme Court held in J.E.B. v. Alabama ex rel. that lawyers also are prohibited from using peremptory challenges to exclude jurors based on gender. Judges with a conflict of interest should remove themselves from a case (or recuse themselves), and a defendant may file a motion requesting that a judge remove himself or herself from the case on the grounds that the judge is unable to be fair and impartial.

The criminal trial has a number of states.

Opening statements. The lawyers may make brief opening statements. Presentation of evidence. The prosecution presents the case-in-chief, and the defense responds with its case-in-chief. Witnesses may be cross-examined. The defendant has a Sixth Amendment right to confront the witnesses against him or her and to cross-examine these individuals.

Reasonable doubt. Each element of the offense must be established beyond a reasonable doubt, or by a “near certitude” of guilt.

Closing argument. The prosecution and the defense have the opportunity to summarize their cases.

Jury instructions. The judge instructs the jury on the law, and the jury must apply the law to the facts in deciding whether the defendant is guilty beyond a reasonable doubt.

Jury deliberations. The jury generally is permitted to examine a copy of the charges and the judge’s instructions, and in most cases, the jurors may view items introduced into evidence. The U.S. Supreme Court has approved nonunanimous verdicts based on a 9-to-3 vote on the grounds that a “heavy majority” of the jury remains “convinced of guilt.” The jury possesses the power of nullification: the ability to disregard the law and to acquit a defendant despite overwhelming evidence of guilt.

The vast majority of criminal cases do not reach trial and are disposed of by guilty pleas. These cases typically are plea-bargained. The U.S. Supreme Court has upheld this practice, although it has required that a guilty plea be knowing, intelligent, and voluntary.

The federal government and the states have initiated a major shift in their approach to sentencing. The historical commitment to indeterminate sentencing and to the rehabilitation of offenders has been replaced by an emphasis on deterrence, retribution, and incapacitation. This primarily involves presumptive sentencing guidelines and mandatory minimum sentences. Several recent U.S. Supreme Court cases have resulted in sentencing guidelines that are advisory rather than binding on judges. An appellate court is required to find only that a sentence, whether inside or outside the guidelines, is “reasonable.”

The U.S. Supreme Court has followed the common law rule and has held that there is no due process right to a criminal appeal, and the decision whether to provide defendants a right to an appeal is to be decided by the legislative branch. The federal government and all fifty states provide an appeal as a matter of right for a felony conviction. This appeal in most cases is to an intermediate appellate court. A discretionary appeal (optional) to the U.S. Supreme Court and to state supreme courts also is available. An appeal of a conviction for a misdemeanor usually involves a new trial (trial de novo) before an intermediate court. A number of claims may be raised on the appeal of a felony conviction. These typically include issues such as the denial of a motion to suppress, a prejudicial process of jury selection, double jeopardy, ineffectiveness of counsel, and a judicial error in the instructions to the jury.

There are several points to keep in mind in regard to criminal appeals.

Interlocutory appeal. The federal and state courts recognize an interlocutory appeal exception in the case of issues that cannot be effectively corrected by waiting until the final judgment and that do not affect the determination of a defendant’s guilt or innocence at trial.

Plain error rule. The general rule is that in order to file an appeal, an individual must first raise an objection at trial. The federal courts and most state courts recognize a plain error exception that allows appellate courts to review an error that was not raised in the trial court. The purpose of the plain error exception is to prevent a miscarriage of justice. The U.S. Supreme Court defined a plain error as a clear error under existing law that “affects substantial rights” and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Harmless error standard. Trial errors are reviewed under a harmless error standard. The appellate court asks whether the court is convinced “beyond a reasonable doubt that the error complained of did not contribute to the conviction obtained.” The question is whether the court is convinced that the error did not influence the jury’s guilty verdict.

Automatic reversal rule. The Supreme Court has recognized that there are some constitutional errors that are so serious that they cannot be considered harmless under any circumstances. The automatic reversal rule is limited to what the Supreme Court has described as “structural defects” that are fundamental to a fair trial. These constitutional errors are restricted to a “very limited class of cases” and include the denial of a lawyer at trial, a biased judge, racial discrimination in the selection of a jury, a rejection of the right to self-representation, denial of a public trial, inaccurate reasonable-doubt instruction to a jury, denial of a speedy trial, and violation of double jeopardy.

Retroactivity of judicial decisions. The last issue in regard to criminal appeals is the retroactivity of judicial decisions. A U.S. Supreme Court ruling that breaks new constitutional ground, such as the right of a defendant to be represented at trial by a lawyer, applies to all other defendants with cases on appeal as well as to defendants whose cases are in “midstream” and to all cases that are brought to trial following the judgment.

A writ of habeas corpus is a noncriminal (civil) lawsuit in which the plaintiff asks the court for a writ on the grounds that he or she is being unlawfully detained. The importance of the writ of habeas corpus is apparent from the fact that Article I, Section 9, Paragraph 2 of the U.S. Constitution provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require.” In 1996, the U.S. Congress significantly limited the availability of habeas corpus in the Antiterrorism and Effective Death Penalty Act. This legislation was a response to the Oklahoma City terrorist bombing and was an effort to combat domestic terrorism by limiting the ability of individuals to challenge their death sentences.