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Criminal Procedure


The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime.


Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV, V, VI, and VIII to the U.S. Constitution. The fourth amendment covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A warrant is a paper that shows judicial approval of a search or arrest. The U.S. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court.

The fifth amendment covers an array of procedural concerns, including the death penalty, multiple trials for the same criminal offense (double jeopardy), self-incrimination, and the general right to due process. It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

The sixth amendment addresses the procedures required at trial. It provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Finally, the eighth amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the fourteenth amendment in 1868. The Fourteenth Amendment forbids the states to "deprive any person of life, liberty, or property, without due process of law" (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments.

Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a "selective incorporation" approach to determine precisely what process is due a criminal defendant. Under this approach, only fundamental rights are protected.

According to the Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures; freedom from cruel and unusual punishment; assistance of counsel; protection against self-incrimination; confrontation of opposing witnesses; a speedy trial; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases in which the defendant could be incarcerated; and protection against double jeopardy. The only protections that are not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury.

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own criminal procedures, and procedures vary from state to state. State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them.

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution's search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a "reduced expectation of privacy" and because a vehicle is inherently mobile. This reduced expectation of privacy also allows police officers with probable cause to search a car to inspect drivers' and passengers' belongings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise. Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless automobile searches (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded protections under the Fourth Amendment.

Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search that is conducted in the absence of reasonable suspicion would be an infringement of guaranteed Fourth Amendment protection, and a court would strike down such an infringement as unconstitutional. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998)


Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects the defendant against unconstitutional police tactics. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a search warrant is required before an officer may search a person or place, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant. Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a hot pursuit; and a search under exigent or emergency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999).

However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high-intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a "search" within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsensual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).

The U.S. Supreme Court's Fourth Amendment jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspicionless vehicle seizures. The Court has held that the Fourth Amendment allows law enforcement to perform warrantless vehicle seizures at a fixed checkpoint along the nation's border to intercept illegal aliens, so long as the search is reasonable in light of the "totality of the circumstances". United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amendment grounds the use of a roadblock to perform warrantless and suspicionless searches of automobiles for the purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).

When an officer seeks a search warrant, he or she must present evidence to a judge or magistrate. The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person's home. However, if the person is discovered with a large amount of marijuana, the quantity may support the suspicion that more marijuana may be found in the person's home, and the large amount may be used as the basis for obtaining a search warrant.

Police officers seeking a search warrant must state, under oath and with particularity, the facts supporting probable cause. If the search warrant is later found to be lacking in probable cause, or if important statements made by the officers are found to have been intentionally misleading, the evidence seized pursuant to the warrant might not be admissible at trial. Moreover, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment might not be admissible at trial. For example, if the warrant states that the officers may search only the suspect's apartment, they may not expand the search to a storage closet outside the apartment.

In executing a search warrant pursuant to the Fourth Amendment, law enforcement officers may enter private property without knocking or announcing their presence if the officers have reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit an effective criminal investigation by allowing the destruction of evidence. While the lawfulness of a "no-knock" entry does not depend on whether property is subsequently damaged during the search, excessive or unnecessary destruction of property in the course of the search might violate Fourth Amendment rights, even though the entry itself is lawful and the fruits of search are not subject to suppression. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).

The Exclusionary Rule

The exclusionary rule protects the right to be free from unreasonable searches. This rule holds that otherwise incriminating subject matter that police officers have obtained illegally must be excluded from evidence. Along with the right of appeal, the exclusionary rule is a defendant's chief remedy for a violation of his or her rights in a criminal procedure.

The Stages OF A Criminal Prosecution

A criminal prosecution usually begins with an arrest. In some cases, the arrest is the culmination of a police investigation; in other cases, it may occur with minimal police investigation. Either way, the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case.

During an arrest, a criminal suspect is advised of his or her Miranda rights. These include the right to remain silent and the right to an attorney. After arrest, the defendant is subjected to a cursory search for weapons and contraband. The defendant is then driven to the nearest jail, police station, or detention center for booking. During booking, the defendant is photographed and fingerprinted, and the arrest is entered into the police log, or blotter. The defendant is informed of the charge or charges if she or he has not already been so informed. The defendant is also allowed to make one telephone call. After being stripped of all personal items, belts, and shoelaces, the defendant may be placed in a holding cell to await presentation before a magistrate. For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate.

While the person waits for this first appearance before the court, a police officer prepares a complaint against the suspect. The complaint is a document that describes the alleged crime. It is screened by prosecutors and then submitted to the court. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. If the magistrate finds that the facts alleged do not establish probable cause to believe that the suspect committed the crime, the magistrate must dismiss the complaint and order the release of the person from custody.

The first appearance must be held without unnecessary delay. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing, but this limit may extend to seventy-two hours if the arrest is made on a Friday.

In the first appearance, the magistrate informs the defendant of the charge or charges as set forth in the complaint. The magistrate also informs the defendant of his or her rights, such as the right to remain silent and the right to an attorney. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel, the court appoints an attorney. This is usually a public defender, but it may be a private defense attorney paid by the court or working free of charge. In most states, the attorney meets with and represents the defendant in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney.

If the magistrate finds probable cause, the magistrate sets bail in the first appearance. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. Acceptable bail is usually cash or other liquid assets. Bail is intended to guarantee the defendant's appearance at trial. In some jurisdictions, if the magistrate determines that the defendant presents a danger to the community or may attempt to flee, the magistrate may refuse to set bail. In such a case, the defendant is forced to remain in jail until the case is resolved.

If the charge is a misdemeanor, the first appearance serves as an arraignment, where the defendant enters a plea of guilty or not guilty. The magistrate then allows the defendant to post bail or leave on her or his own recognizance, with the understanding that the defendant will reappear for trial.

Following the first appearance, a felony case proceeds to a preliminary hearing. Before this hearing is held, the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain, or a mutually acceptable disposition of the case. If a deal can be reached, and it is acceptable to the defendant, it is presented to the court for approval at the preliminary hearing.

The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Unlike the first appearance, the preliminary hearing is adversarial. The prosecutor relies on witnesses to present the prosecution's evidence, and the defendant may do the same. Both sides are allowed to question, or cross-examine, the opposing side's witnesses. After this hearing, the court may dismiss the charges if they are not supported by probable cause.

In some states, review by a grand jury is also required before a felony prosecution may continue; this review is not required for a misdemeanor prosecution. A grand jury is a group of private citizens summoned to review, in private, the prosecution's evidence. Generally, a grand jury consists of more jurors than a trial jury, which usually numbers twelve. In a grand jury proceeding, the prosecutor presents the evidence against the defendant to the grand jurors, and the grand jurors may ask questions of the prosecutor. The prosecutor then presents a proposed indictment, or a written accusation sworn to by the prosecutor. If a majority of the grand jury finds no probable cause for the prosecution, it returns a no bill, or a refusal of the indictment. If a majority finds probable cause, the grand jury returns a true bill, and prosecution continues.

Following a true-bill finding by a grand jury, the prosecution files the indictment with the trial court. Where no grand jury was required and only a preliminary hearing was held, the prosecution files an information, which is similar in form to an indictment but written and approved by the prosecutor alone.

After the indictment or information courts review criminal convictions for trial court errors. They rarely overturn verdicts on evidentiary bases. Even if an appeals court finds a trial court error, it will affirm the conviction if it feels the error did not affect the outcome of the case.

Generally, state court defendants appeal to a first court of appeals, then to the highest state court (usually the state supreme court), and then to the U.S. Supreme Court. In federal cases, defendants appeal to a U.S. court of appeals and then to the U.S. Supreme Court. The review of appeals after the first appeal is discretionary; that is, the court may decline to hear the case.

After exhausting all appeals, a defendant sentenced to incarceration may collaterally attack the conviction and sentence. This means the defendant attacks the conviction in an action other than an appeal. The most common method of collateral attack is submission of a petition for a writ of habeas corpus. This is a civil action against the warden of a prison, challenging the legality of the imprisonment. If the court approves the writ, the inmate must be set free.

A habeas corpus petition is not an appeal; courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. Generally, an inmate will ask for the writ in state court before filing in federal court.

All states also have a procedure in place to hear claims of newly discovered evidence. However, no relief is granted if the new evidence would not have made a difference in the verdict.

Some inmates are given early release from prison, or parole. Parole is granted by the state or federal parole board or correctional board. It allows the inmate to finish the prison sentence in the community. The court requires a paroled defendant, or parolee, to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence.

In some states, if the conviction was for first-degree murder, the defendant may be sentenced to death. Where the sentence is death and the defendant has lost all appeals and collateral attacks, the defendant may ask the governor of the state for clemency. For federal crimes, the president retains the power of clemency. Clemency is forgiveness and mercy, and it usually comes in the form of a pardon or of a commutation of a sentence. A pardon releases the inmate from custody and restores his or her legal rights and privileges, such as voting and gun ownership. A commutation decreases or suspends an inmate's sentence. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate.


Criminal Procedure; Double Jeopardy.

The exclusionary rule deters police misconduct in searches. Without the admission of the evidence at trial, the case against the alleged criminal may be dismissed, and the officer's actions in gathering that evidence will have been wasted effort. The exclusionary rule also prohibits the use of evidence obtained in violation of other constitutional rights, such as statements of the accused that are elicited in violation of the right against self-incrimination.

The most important exception to the exclusionary rule is the good-faith exception. Essentially, the good-faith exception allows the use of evidence obtained in violation of a person's constitutional rights if the officer who obtained the evidence acted in a reasonable manner. If evidence is illegally seized and does not fall under an exception but is erroneously admitted at trial by the judge, a guilty verdict will be reversed on appeal if the prosecution cannot show beyond a reasonable doubt that the evidence did not contribute to the conviction.

When officers have collected evidence pursuant to a search warrant, the burden is on the defendant to show that the warrant lacked probable cause or that other problems tainted the collection process. For a warrantless search, the prosecution bears the burden of proving that the search was reasonable. However, before evidence seized during a warrantless search will be excluded from trial, the defendant must prove that he or she had a reasonable expectation of privacy in the place that was searched. Homeowners, for example, enjoy a reasonable expectation of privacy in items that they keep inside their homes. However, houseguests might not have a similar expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Disputes over the application of the exclusionary rule are usually resolved at a pretrial proceeding called a "suppression hearing."


The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. An officer also may make a warrantless arrest of persons who commit a crime in the officer's presence.

An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest can be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. These warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements that the arrestee makes after the arrest may be excluded from trial.

After the arrest, the police must follow certain guidelines during their investigations. For example, if the arrestee requests an attorney or expresses a wish to remain silent, the officers must honor the request and refrain from questioning the arrestee. However, the police may attempt to confirm that they have arrested the right person. They may do so by showing a victim a photo array that includes a picture of the suspect; by arranging a lineup of live persons at the police station, with the suspect included in the lineup; or by organizing a show-up, which is a personal showing of the arrestee to the victim shortly after commission of the crime.

Where photo arrays or lineups are used, the police must refrain from highlighting the arrestee. For example, if an arrestee is white, an officer may not show a witness a series of photographs in which all of the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.


At trial, a criminal defendant has a number of constitutional rights, including the right to counsel, the right to a public trial, the right to a trial by jury, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the privilege against self-incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal.

There are exceptions and nuances to most of the procedural trial rights. Under the Sixth Amendment, if a defendant is indigent, or unable to afford an attorney, the court will appoint an attorney. This right applies only for felony charges and cases in which actual imprisonment may be imposed. Accordingly, an indigent who is not represented by counsel at trial may not be sentenced to incarceration, regardless of whether conviction of the offense warrants incarceration (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However, a defendant will not be appointed an attorney if the he or she is able to pay for a private one.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process through the end. An attorney must be present at the request of the defendant during such events as interrogation, lineup identifications after charges have been filed, preliminary hearings before the court, trial, and sentencing.

The Sixth Amendment right to counsel includes the mandate that a defendant's counsel must be effective and not incompetent. Attorneys must generally consult with their clients about trial strategy and tactics, in order to be effective and competent. However, a criminal defense attorney's failure to consult with a client before deciding against filing a post-conviction appeal does not necessarily render his or her assistance ineffective or incompetent. While the better practice would be for attorneys to always consult with their clients regarding the possibility of appeal, the Sixth Amendment only requires such consultation when there is reason to believe either (1) that any rational defendant would want to appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

A defendant is free to reject counsel and to proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics. Additionally, state courts of appeal may disregard a defendant's request to represent himself or herself on appeal without violating Sixth Amendment rights. Martinez v. Court of Appeals of California, Fourth Appellate Dist.,, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)

The Sixth Amendment right to a trial by jury does not guarantee a jury in all cases. The right generally applies only in "serious cases"—which are generally considered to be those in which conviction can result in incarceration for more than six months. When a jury trial is not guaranteed, the trial court judge will hear the case and make a decision.

In federal court, a jury verdict must be unanimous. This directive is not applicable to the states. In some states, a vote of nine out of twelve jurors is sufficient to convict or to acquit. States may even provide as few as six jurors. Six is the minimum, because juries should represent a cross section of the community. If a jury of six is used, the verdict must be unanimous.

Under the Confrontation Clause of the Sixth Amendment, a defendant has the right to cross-examine all prosecution witnesses at trial. In limited circumstances, the out-of-court statements made by a witness who is absent from court may be offered through the testimony of a third party. Known as hearsay statements, this type of evidence may be admitted if the statements were made under oath and subject to cross-examination by the defendant's attorney, and if the witness is unavailable to testify at trial despite the best efforts of the prosecution. However, a defendant's Sixth Amendment right to confront and to cross-examine the accuser in open court is violated when the prosecution introduces the incriminating hearsay statements of a non-testifying co-defendant in a joint trial, even if the defendant's name is redacted from the incriminating statements, because juries will often realize that the redacted portions are referring to the defendant. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

The Fifth Amendment privilege against self-incrimination extends from the moment of custody. A defendant need not make statements or testify at trial, and that right is absolute. However, with a sufficient showing of need by the prosecution, self-incrimination may come from sources other than the defendant's statements or testimony. For example, a court may force a defendant to appear before witnesses for identification; to provide handwriting or blood or voice or fingerprint samples; or to repeat certain words or gestures.

However, the mere fact that a defendant has pled guilty to a criminal act does not waive the privilege against self-incrimination during the sentencing phase. As a result, a defendant has the right to remain silent, during sentencing, about facts that bear upon the severity of the sentence, and the sentencing court may not draw an adverse inference from the defendant's silence. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

If the defendant does testify, he or she may be questioned by the prosecutor about previously inadmissible statements that contradict that testimony. Thus, the Fifth Amendment privilege against self-incrimination will not apply if the defendant has made statements that are contrary to testimony given on the witness stand. Nor does the Fifth Amendment prohibit a prosecutor from calling the jury's attention during closing arguments to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The Fifth Amendment prohibits the prosecution from commenting to the jury about the defendant's failure to testify at trial, but it does not prohibit the prosecution from making comments that impeach the defendant's credibility after her or she has testified. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 294 (2000).

The Compulsory Process Clause of the Sixth Amendment gives a defendant the right to obtain favorable witnesses. This means that the defendant has the same power as the prosecutor to subpoena witnesses. However, if the government, acting in good faith, deports a potential defense witness (i.e., makes the witness leave the jurisdiction), it does not violate compulsory process rights.

The Sixth Amendment grants the right to "an impartial jury of the State and district wherein the crime shall have been committed." This clause gives a defendant the right to question jurors for bias and prejudice. The right belongs to both the defense and the prosecution, and it is exercised in a proceeding called voir dire. In voir dire, both sides are allowed to question jurors and to reject a certain number of jurors, until the jury pool is complete. The rejection of jurors may not be based on race, sex, or national origin.

At trial, the prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt. This level of belief is abstract and has been described in a number of ways. The best definition is that any doubt regarding the defendant's guilt should not be fanciful or conjured up to avoid delivering a verdict of guilty. This standard is reserved for criminal trials; it is a higher standard than "a preponderance of the evidence" and "clear and convincing evidence," the burdens of proof used in civil trials.

The vast majority of criminal cases are resolved with a plea of guilty before, or sometimes during, trial. Prosecutors may use their discretion to reduce charges in exchange for a guilty plea, in an arrangement known as a pleabargain. A plea of guilty cannot be revoked after a court has accepted it. Generally, it is appealable only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a pleabargain because it satisfies the criminal justice system's goal of encouraging people to accept responsibility for their actions, and because pleabargains avoid costly, time-consuming trials. A prosecutor also may agree to defer prosecution and to drop charges after a specified period if the defendant fulfills certain conditions. A defense attorney may seek a plea-bargain if the evidence against the defendant is overwhelming. Both sides are free to reject any plea-bargains and to proceed to trial.

If a defendant is acquitted of all criminal charges, the prosecution may not subsequently prosecute the defendant for the same act that produced those charges. This right is derived from the prohibition of double jeopardy that is found in the Fifth Amendment. In a jury trial, double jeopardy protection attaches when the jury is impaneled and sworn in. For bench trials, or cases presented to a judge only, double jeopardy protection begins when the first witness is sworn in. Under double jeopardy protection, the prosecution may not deliberately cause a mistrial if the trial is going poorly for the prosecution. However, if the jury cannot reach a verdict, and the court declares a mistrial, the defendant may be retried for the same offense.

Generally, a defendant may not face both federal and state prosecutions for the same offense. One exception to this general rule is that a defendant in state court may face charges in federal court for the same act with the permission of the attorney general, but only if the offense is within the jurisdiction of the federal court. For example, a conviction for driving while intoxicated raises no federal concerns; federal laws do not address that offense. Thus, the attorney general may not authorize the federal prosecution of a defendant who has been acquitted in state court of driving while intoxicated. The acquitted defendant may, however, face a civil lawsuit for damages, because civil actions do not put a person "in jeopardy of life or limb," and therefore double jeopardy does not apply to them (U.S. Const. amend. V, cl. 2). Similarly, the Double Jeopardy Clause is not violated when a defendant faces both criminal and administrative proceedings arising out of a single wrongful act. Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).


Sentencing After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant's perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and to remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of parole, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, forfeiture of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of probation.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate property of certain criminal defendants. Under federal law, persons who have been convicted of controlled-substance violations or racketeering schemes may be forced to relinquish much of their personal property, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This type of sentence is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person who has been convicted of trespassing to the same punishment as a person who has been convicted of homicide.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (gregg v. georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering capital punishment, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. atkins v. virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Habeas Corpus Petitions After an incarcerated defendant has exhausted all appeals without success, he or she may file a writ of habeas corpus. This is a civil suit against the warden of the prison (in his or her professional capacity), challenging the constitutionality of the incarceration. There is no right to the assistance of an attorney for habeas corpus petitions.

A habeas corpus petition is not another appeal. The only basis for a writ of habeas corpus is the deprivation of a constitutional right. For example, an inmate may claim that he or she was denied the assistance of counsel guaranteed by the Sixth Amendment, because the defense attorney was incompetent. But defendants generally may not rely on habeas corpus proceedings to challenge a federal sentence on the ground that the prior state convictions upon which the federal sentence was based had been unconstitutionally obtained. Daniels v. United States, 5532 U.S. 394, 121 S.Ct. 1567, 149 L. Ed. 2d 608 (2001).

Parole If an inmate is released on parole and then violates the terms of the parole, he or she must attend a hearing to determine whether parole will be revoked. The parolee may be entitled to the assistance of counsel at the revocation hearing. This entitlement will depend on a number of factors, including whether the parolee denies committing the alleged acts, as well as the rules of the parole board. If the parolee can afford a private attorney, he or she is free to hire one; there is no bar to representation in parolerevocation hearings.

Inmates who seek parole often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight, and may typically reject an inmate's request for parole without providing any reason for doing so. Accordingly, the federal Bureau of Prisons has the authority to adopt regulations that categorically deny early-release incentive to prisoners whose current offense was a felony attended by "the carrying, possession, or use of a firearm." Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L. Ed. 2d 635 (2001).

further readings

Arkin, Marc M. 1992. "Rethinking the Constitutional Right to a Criminal Appeal." University of California at Los Angeles Law Review 39.

Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993. Criminal Procedure and the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, Minn.: West.

PMBR. 1993. "Criminal Procedure." Multistate Workbook. vol. 2. Multistate Legal Studies.


Automobile Searches "Is the Fourth Amendment in Jeopardy?" (In Focus); Custodial Interrogation; Incorporation Doctrine; Prisoners' Rights; Public Defender; Right to Counsel.

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Trial, Criminal


Criminal trials have always held a special fascination for Americans and have furnished the plots for numerous books, plays, films, and television shows. Although civil trials can occasionally be of broad general interest, violations of criminal law frequently arouse strong popular emotions. Not surprisingly, horrific crimes are frequently front-page features in the newspapers. Trials that retell those crimes are often likely to be of interest to the public. To the extent that such trials deal with basic human weaknesses such as greed, anger, or jealousy, they frequently recount a fascinating tale.

In recent years, through changes in trial rules in some states, the American public has been able to get beyond newspaper coverage of criminal trials and actually watch selected criminal trials on television. Some of these trials have proven very controversial and have sparked considerable interest in our criminal trial system.

Civil versus criminal trends

Criminal trials differ from civil trials in several important respects. For one, criminal trials are always prosecuted on behalf of the state, not on behalf of victims or individual citizens. Thus a prosecutor in deciding whether or not to prosecute a possible crime or whether to offer a defendant a plea bargain has to make decisions in the public interest. For this reason, the head of each prosecuting agency is typically an elected public official who must answer to the voters for the decisions of the office.

Another important difference between criminal cases and civil cases is that criminal cases are regulated by the Constitution to a much greater extent than civil cases. Many provisions of the Bill of Rights, such as the right to indictment by grand jury, the right to counsel, the protection against compulsory self-incrimination, the right to confront witnesses, and the right to a speedy trial are directed only to criminal cases. This concern in the Constitution reflects the fact that, unlike civil cases which are usually concerned with money damages, what hangs in the balance in a criminal case is usually the freedom of the defendant and, sometimes, even the life of the defendant. For this reason, the Constitution provides defendants with guarantees aimed at ensuring that their treatment at the hands of the state is proper and that the trials they receive will be fair.

Burden of proof. The most important procedural difference between civil trials and criminal trials is the difference in the burden of proof. In civil trials where, for example, driver Smith claims that driver Jones was at fault in causing an accident and thus was responsible for Smith's damages, Smith must prove Jones's negligence by a preponderance of the evidence. This simply means that the jury must find Smith's evidence on the issue more convincing, even if only slightly so, than any evidence Jones offers. The scale must tip at least a bit in Smith's favor for Smith to prevail.

In a criminal trial the situation is quite different: the prosecution must prove the defendant's guilt beyond a reasonable doubt. This is obviously a very heavy burden of proof. To explain its meaning a standard jury instruction tells jurors that in order to find the defendant guilty they must be convinced by "proof of such convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs" (Devitt, Blackmar, and Wolff, p. 354). If, after hearing all the evidence, a jury has a reasonable doubt, then it must return a verdict of not guilty.

The reasonable-doubt standard in criminal cases is constitutionally required, and it has long been viewed as a central safeguard against erroneous conviction and the resulting loss of the wrongly convicted defendant's liberty and good name. Because a defendant in a criminal trial has at stake interests of immense importance, the U.S. Supreme Court has made it clear that due process demands that the margin of error in criminal cases be reduced in the defendant's favor by placing on the prosecution the burden of proving the defendant guilty beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)).

Implications of proof beyond a reasonable doubt. The most obvious implication of proof beyond a reasonable doubt is that criminal cases are almost always close cases. The prosecution may have a strong case against a defendant, and yet, given the heavy burden of proof, it may still not be able to obtain a conviction from a jury. The jury may return a verdict of not guilty, even in a strong case, because the prosecution was not able to prove the defendant guilty beyond a reasonable doubt.

A second implication of the heavy burden of proof placed on the prosecution by the Anglo-American system of criminal procedure has to do with the meaning of a not guilty verdict. News accounts sometimes report that a jury in a criminal case "found the defendant innocent," and this seems to imply that the jury was convinced that the defendant was innocent or that it perhaps found the defendant's evidence more likely to be true than the prosecution's evidence. But a jury that has been properly instructed on the burden of proof and the meaning of proof beyond a reasonable doubt will often find the prosecution's evidence to be far stronger than the defendant's and yet feel compelled to acquit the defendant. Even if the defendant's explanation is rather implausible, it may leave the jury with a reasonable doubt and thus entitle the defendant to an acquittal. In short, the task of the defense in a criminal trial is not to convince the jury of the defendant's innocence, but rather to convince the jury that a reasonable doubt remains as to the defendant's guilt and that the defendant must thus be acquitted.

Adversarial versus inquisitorial trial systems. It is often suggested that Western trial systems can be divided neatly into those that are adversarial and those that are inquisitorial. In adversarial systems responsibility for the production of evidence is placed on the opposing attorneys with the judge acting as a neutral referee between the parties. By contrast, in inquisitorial trial systems responsibility for the production of evidence at trial is the job of the trial judge and it is the trial judge who decides which witnesses will be called at trial and who does most of the questioning of witnesses.

According to this claimed division among Western trial systems, the trial systems in the United States and England are considered adversarial in nature while those on the Continent in countries such as France or Germany are supposed to be inquisitorial.

But this distinction is not clear today. One reason for this is that European trial systems have all incorporated some adversarial features into their systems. Thus, for example, lawyers in Europe today have the right to question witnesses and they can also demand that certain witnesses be called to testify. By the same token, in the American criminal trial system trial judges are not always passive. They have the right to ask questions of witnesses and even to call witnesses not called by either party. Particularly, when a jury has been waived by the defendant, trial judges can be quite active in questioning witnesses.

But even if there is no litmus test that sharply distinguishes adversarial trial systems from those that are inquisitorial, it certainly remains accurate that the adversarial elements are much more emphasized in the American trial system. American lawyers have much more responsibility for the production and presentation of evidence than do lawyers in other Western trial systems, and trial judges in the United States tend to be much more passive at trial than judges in other Western trial systems. A trial in the United States is conceptualized as a battle in which the trial judge is a neutral and passive referee between the two combatants with the ultimate decision to be made by a jury.

Discovery in civil versus criminal cases. Another important difference between civil and criminal cases that affects what takes place in the courtroom is the difference in the amount of discovery that is permitted in preparing for trial. Discovery is the process by which each side preparing for trial learns about the witnesses and other evidence that the other side intends to introduce at trial.

In civil cases there is very broad discovery. For example, in civil cases both parties have the right prior to trial to take depositions of persons with information about the issues at stake in the lawsuit. A deposition provides an opportunity for lawyers on both sides of the case to question a person under oath in the presence of a court reporter who makes a record of what is said. As a result of this face-to-face questioning, the lawyers will not only learn all the information that the person being deposed may later present at trial, but they may also develop a good idea of how the witness will be perceived by a jury and thus will be able to plan for the examination or cross-examination accordingly.

Although there is considerable variation in criminal discovery from one jurisdiction to another, many jurisdictions do not require the prosecution even to disclose the names of the witnesses whom it intends to call at trial, let alone allow the defense to take wide-ranging depositions from them.

In short, in criminal cases the amount of information available to the prosecution and the defense will usually be much less than would be available to opposing sides in a civil lawsuit. As a result of this limited discovery, prosecutors and defense attorneys often question witnesses for the opposing side to whom they have not talked before the trial. Indeed, there may be witnesses of whose existence they were not even aware prior to the trial. This adds an element of uncertainty and surprise that further distinguishes criminal from civil trials.

The atmosphere surrounding the trial

Due process demands that the trial a defendant receives be a fair one. It is obvious that even if a trial is technically correct in terms of evidentiary rulings, jury instructions, and other rulings during the trial itself, a trial can still be unfair because it takes place in an atmosphere that is prejudicial to the defendant.

In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court reversed a murder conviction because the trial had violated due process in a case that, one hopes, represents a high-water mark in terms of a prejudicial trial atmosphere. In that case the publicity for a local murder trial was pervasive and, more important, it was very prejudicial; numerous editorials insisted on the defendant's guilt, and even news accounts were sometimes slanted against the defendant. In addition, the newspapers reported sensational rumors or "evidence" that was in fact never disclosed at the trial. Not only were the jurors not protected from this barrage of prejudicial publicity, but reporters themselves were disruptive even during trial proceedings as they moved in and around the courtroom, creating so much noise that it was difficult for witnesses or lawyers to be heard. In the Court's words, the trial was conducted in a "carnival atmosphere."

Controlling the courtroom. Many occurrences in a courtroom or courthouse can prove distracting to a jury or otherwise threaten a fair trial. Examples include reporters who move around the courtroom and even attempt to handle or photograph exhibits during recesses; spectators who are noisy or who try to intimidate particular witnesses by comments in the court-room or threatening gestures in the hall outside it, and overcrowding, which interferes with the entry or exit of witnesses and may precipitate disputes between spectators over the right to a seat.

Although there is no one solution to all these problems, a trial judge has the right to control the courtroom and the courthouse premises to help ensure that the defendant receives a fair trial. Given the limited size of most courtrooms, a judge may have to restrict the number of spectators or media representatives who can attend the trial, and may find it necessary in certain highly publicized cases to require the use of a ticket system to prevent corridors from being thronged with would-be spectators. It may also be necessary to bar spectators or media representatives from entering or leaving a crowded courtroom except during recesses.

The problem of pretrial publicity. One problem that has gotten worse for trial judges in recent years is the problem of how best to guarantee a defendant a fair trial in a high-publicity case. In such cases there can be pervasive and highly prejudicial publicity about the offense or the suspect in the period leading up to trial and this may continue even during the trial.

At one time, one weapon for countering prejudical pretrial publicity was for the trial judge to order a change of venue so that the trial would take place at a distant location from the county or city in which the crime occurred (Rideau v. Louisiana, 373 U.S. (1963)). But this is far less an effective antidote today. The concentration of new sources, the rise of cable and satellite television systems, and the ability of newspapers to publish immediately on the Internet make it harder to insulate jurors from possibly prejudicial trial publicity.

The steps in a criminal trial

Jury selection. While technically a trial begins when the jury is sworn in at the end of the jury selection process, jury selection is considered so important by trial lawyers that it is appropriate to consider jury selection as the first step in a criminal trial.

During jury selection either the lawyers or the trial judge will question potential jurors to make sure that they can be fair in deciding the case. As a result of such questioning, if the prosecutor or the defense attorney believes a certain juror cannot be fair and impartial either lawyer can challenge that juror for cause. If the trial judge agrees, the potential juror will be removed from the panel of jurors.

A second way a prosecutor or defense attorney can remove a potential juror is through a peremptory challenge. A peremptory challenge permits a lawyer to remove a possible juror without the necessity of showing a reason. Each jurisdiction allots a certain number of peremptory challenges to each side in a criminal case, and the number usually varies depending on factors such as the size of the jury or the seriousness of the crime. While the number varies from jurisdiction to jurisdiction, in a routine criminal case, such as a burglary or a theft case, the prosecutor and the defense attorney will often have five or six peremptory challenges at their disposal.

Opening statements. Because a trial can last days or even weeks, obviously it will be easier for jurors to understand how the bits and pieces of evidence that come to their attention fit together if they can be given an overview of the issues and evidence that will be central to the trial. This overview is provided by the opening statements that are delivered by the lawyers at the start of the trial.

The prosecution's opening takes place after the jury has been selected and sworn, but before the first witness has been called to testify. Although the opening does not supply the jury with any evidence (the evidence comes only from the witness stand and whatever exhibits are admitted at trial), nonetheless the prosecution's opening statement is very important. First, it provides an opportunity to explain the nature of the charge, or charges, for which the defendant is on trial. Some charges are easily understood by a jury, and in such instances it may be sufficient for the prosecutor simply to read the charging document as part of the opening. But other trials involving more complex charges, such as conspiracy or fraud, may require a more careful explanation of the elements involved.

A second function of the prosecutor's opening is to explain the evidence that will be produced in an attempt to prove the defendant's guilt beyond a reasonable doubt. This preliminary overview of the case is especially important if the trial will be protracted. But even in a trial lasting a relatively short time, an explanation of the prosecution's case can be important because witnesses may not always be able to testify in the order that a logical presentation of the evidence might suggest. For example, a fingerprint expert may have to testify early in the case, if other obligations make it impossible for the expert to appear later in the trial. But it may only be later in the trial that the gun which the fingerprint expert examined is connected to the defendant. An opening statement can help the jury understand how all the evidence fits together.

An opening statement is also important in a case that is based on a number of pieces of circumstantial evidence. In such a case, there may be no one witness who can tie the whole case together. A jury may grow bored or even frustrated as the prosecutor questions a witness at length about some apparently minor detail whose importance will be apparent only later in the trial. An opening statement helps the jury understand the significance of such pieces of evidence. It is easier for the jury to be patient while the prosecutor elicits testimony about a particular piece of evidence if the jury understands how that evidence fits into the mosaic.

Finally, opening statements are also exercises in persuasion. The opening and closing statements are the only opportunities the lawyers have to speak directly to the jury, and trial lawyers recognize the lasting impression that a clear, forceful, and logical opening statement can make on the jury.

Although the prosecutor always delivers his opening statement at the start of the trial, in many jurisdictions the defense attorney has a choice. The defense can present its opening after that of the prosecutor, or can reserve it until the prosecution has finished presenting its case and the defense is about to begin its own case.

Calling witnesses. The U.S. system of criminal trials is a part of the Anglo-American adversary system, under which trials are controlled to a large extent by the opposing sides. Each side presents its case and vigorously argues the merits of its evidence while attacking, as energetically as is proper, the evidence supporting the opposing side. The selection and questioning of witnesses is thus primarily the obligation of the opposing lawyers. Although a judge in a criminal case may occasionally call a witness and is permitted to ask questions of witnesses, by tradition the role of the judge is that of a neutral referee between the prosecution and the defense.

Both the prosecutor and the defendant have the power to subpoena witnesses who have relevant testimony to offer at trial. In fact, the Sixth Amendment specifically guarantees that a defendant have "compulsory process for obtaining witnesses in his favor." This subpoena power is necessary because many witnesses would prefer not to testify at trial, especially if there is likely to be a rigorous cross-examination.

Although subpoena power in criminal cases is broad, there are privileges that restrict the ability to call to the stand certain witnesses. For example, the Fifth Amendment privilege against self-incrimination bars the prosecution from calling the defendant as a witness as part of its case. Some states also have enacted laws providing for a marital privilege, which bars the prosecution from calling as a witness the spouse of the defendant if the defendant objects to having the spouse testify.

Even if there is no bar to calling certain witnesses to the stand, privileges may still protect certain matters from being revealed at trial. Thus, a witness for either the prosecution or the defense may refuse to answer certain questions out of fear that his answers will incriminate him. (Sometimes the prosecution will avoid this problem by granting the witness immunity.) Or a witness may invoke a number of other privileges, for example, the doctor-patient privilege or the priest-penitent privilege. Such privileges are designed to protect confidential communications arising out of these relationships from subsequent disclosure, even at a trial.

Exclusion of witnesses from the courtroom. The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt and always presents its case first. But before any witnesses are called to the stand, it is frequently moved by either the prosecution or the defense that all witnesses be sequestered. This means that all witnesses who will be called at the trial are ordered to remain outside the courtroom until it is time for a particular witness to take the stand. Thus, a witness who is called late in the trial will not have heard the testimony of earlier witnesses. It is believed that sequestration helps discourage fabrication or collusion and also helps expose any inaccuracies in testimony.

Motions for sequestration of witnesses are usually routinely granted, and in most jurisdictions there is a right to sequestration by either side. There are, however, some exceptions. Usually a person whose presence in the courtroom is essential to the presentation of the case, such as the police officer who investigated the case, will be permitted to remain in the courtroom. The defendant, of course, has a constitutional right to be present and thus must also be permitted to remain in the courtroom even if he or she intends to testify. Finally, some states have exempted crime victims from sequestration rules and permit the victim to remain in the courtroom throughout the trial.

Examination of witnesses. The general sequence of the witnesses at a trial is as follows. First, the prosecution presents its direct case, aimed at proving that the defendant committed the crime in question. When the prosecution has finished with the presentation of its case against the defendant, the defendant has an opportunity to call witnesses and put on a defense. If the defendant chooses to put on a defense, the prosecution is then permitted to call additional witnesses to rebut the defense witnesses.

For example, the prosecution may present a series of witnesses in an effort to show that the defendant robbed a certain bank on a certain date. The defense may then call witnesses with the aim of establishing that at the time of the robbery the defendant was bowling at a certain bowling alley and thus could not have robbed the bank. Finally, the prosecution may call employees of the bowling alley in question to try to prove that the defendant was not at that bowling alley at the time of the robbery.

Each witness called to testify is questioned first by the side that called the witness. This is known as the direct examination of the witness. When the direct examination is over, the lawyer for the opposing side is permitted to question the witness in what is called cross-examination. After cross-examination is completed, the side that originally called the witness may question him in what is called redirect examination. This is usually limited to explaining or developing matters that were raised during the cross-examination. In some instances, if new matter has come out in redirect examination, a judge has permission to permit recross-examination.

The main difference between direct examination and cross-examination is the manner of questioning. In cross-examination an attorney is permitted to ask leading questions, which suggest the desired answer and usually call for a yes or no response. But in direct examination the questions should not be leading. Thus, in direct examination of a witness to a robbery, it would be improper for the prosecutor to ask a series of questions such as "And the man you saw robbing the bank was six feet tall, wasn't he?" or "And he was dressed in jeans and a green sweater, wasn't he?" On the other hand, questions of the same form would be permitted in cross-examination, for example, "It's true, isn't it, that you only saw the robber for fifteen seconds?" and "Isn't it a fact that you were very frightened at that time?"

The distinction between the form of questions permitted in direct examination and the form permitted in cross-examination reflects the fact that the witness's testimony usually is favorable to the side calling the witness, and unfavorable to the other side. In examining a witness called by the other side whose testimony is damaging, leading questions are needed in order to make an effective challenge to the witness's perception, memory, or credibility.

In addition, since each side usually calls witnesses who are generally cooperative and whose testimony is helpful to it, leading questions are not needed in direct examination. The attorney for that side has generally gone over the questions with the witness outside the courtroom, and sometimes there have been several rehearsals of the trial testimony in the days before trial. Given the reality of extensive witness preparation that takes place prior to important trials, there is less need for leading questions in direct examination and more need for leeway in attacking testimony that is not as spontaneous as it may appear to a jury.

Of course, witnesses do not always cooperate with the side that called them, and the leeway permitted in both the scope of examination and the manner of questioning the witness is always a matter for the discretion of the trial judge.

Admissible evidence

The judge's screening function. To understand criminal trials, it is necessary to understand the role of the trial judge in the admission of evidence. In the Anglo-American trial system the judge performs a screening function for the jury, making sure that the evidence brought before it is relevant and that it is not prejudicial to the defendant or to the state. Many items of evidence that are relevant in a broad sense are kept from the jury because the trial judge has decided that the danger of prejudice to the defendant outweighs the probative value of the piece of evidence in showing that the defendant committed the crime in question. Thus in a murder case, evidence offered by the prosecution showing past arrests of the defendant for assault will not be admitted, nor will evidence of the defendant's reputation as a violent person be admitted as part of the prosecution's direct case. Even gruesome pictures of the body of a murder victim that show the wounds may not be admitted for the jury's inspection if a trial judge feels that the pictures may inflame the jury and distract it from its job of carefully evaluating the evidence in the case. Of course, most evidentiary rulings can only be understood in context, taking into account the other evidence in the case and the legal and factual issues being contested. But it should be apparent that many major battles at a trial may take place outside the hearing of the jury because of the judge's obligation to rule on the admissibility of evidence. Thus one who observes a trial frequently sees the lawyers and the judge conferring at the side of the judge's bench in whispers discussing the admissibility of a piece of evidence or the propriety of a line of questions. Normally, judges try to resolve these questions quickly so they do not have to remove the jury from the courtroom and the trial can continue without a long interruption. Hence the convenience of arguing some evidentiary issues at the side of the judge's bench (so-called sidebar conferences ). But sometimes the issue is too complicated or too important to be argued in that abbreviated way and the judge will order the jury to return to the jury assembly room so that a full discussion of the issue can take place in the courtroom. Often a substantial part of a trial is consumed by arguments on evidentiary and other legal issues outside of the hearing of the jury.

Hearsay evidence. Besides the general screening function performed by the trial judge in making sure that the probative value of an item of physical evidence or a line of questioning outweighs any prejudice to the defendant, there are many specific rules of evidence designed to enhance the reliability of trial verdicts. One rule that is central to the Anglo-American system of trialsboth civil and criminalis the rule that bars hearsay testimony.

A hearsay statement is defined as an out-of-court statement offered for the truth of the matter asserted. This rule is perhaps best understood by considering an example. Imagine a bank robbery trial in a case investigated by Federal Bureau of Investigation agent Mary Smith. At the trial of John Doe, the government calls Smith, who proceeds to tell the whole story of the robbery as she learned it from the witnesses. She explains that a bank teller, Johnson, described the robber and picked out Doe in a lineup; she testifies that a bank customer, King, said that the robber wore a green plaid suit and a red bow tie with white polka dots. Finally, Agent Smith testifies that she interviewed Doe's ex-girlfriend and that the girlfriend said Doe owned a green plaid suit and a red bow tie with white polka dots.

All of this evidence as testified to by Agent Smith would be hearsay evidenceit is a series of statements that were made out of court to Agent Smith, and they are being offered for their truth. The problem with such hearsay is that the jury hears only Agent Smith, when the crucial witnesses who should be examined in the jury's presence are the bank teller, the bank customer, and the ex-girlfriend. Because hearsay testimony is inadmissible unless it fits within a recognized exception, the government in this example cannot present its case through secondhand reports of what others said. Instead the prosecution must call the actual witnesses to testify to exactly what they observed and what they each know personally. The jury will then be in a better position to assess the credibility of the witnesses, especially when it is considered that the defense will have an opportunity to cross-examine each of the witnesses and to expose any weaknesses in their testimony.

The ban on the use of hearsay testimony is not absolute. There are many exceptions that would allow it, and, like rules of evidence in general, these exceptions vary from jurisdiction to jurisdiction. One common exception is the rule that permits the admission of a witness's prior testimony if he or she is unavailable. Thus, where a witness testified at the first trial of defendant Doe and there was a hung jury necessitating a second trial, the testimony of this witness could be introduced at the second trial under the hearsay exception if the witness had died before the second trial.

The trial ends

Closing arguments. At the conclusion of the presentation of all the evidence there remain two very important steps: closing arguments and the judge's instructions to the jury. In a majority of jurisdictions the closing arguments, or summations, precede the judge's instructions to the jury but in some jurisdictions the judge first instructs the jury and then closing arguments are made.

Closing arguments are vital because a good one can have a strong impact on the jury's deliberations, which begin shortly after the closings take place. For both prosecutor and defense counsel, the closing argument affords an important chance to review the testimony and exhibits that have been admitted during the trial, as well as to argue for any inferences that they may wish the jury to draw from the evidence. Closing arguments are supposed to be argumentative, and appeals to common sense, attacks on the motives and credibility of unfavorable witnesses, and rather emotional pleas for a certain result are common. Closings also provide the opportunity to remind the jury of how the evidence inter-twines with the law, and a good closing argument will weave together favorable evidence and the jury instructions that the lawyer giving the closing believes will support a favorable verdict.

There are some important limitations on the scope of closing arguments. Although a lawyer may argue vigorously for a certain conclusion, it is unethical for a lawyer to assert the lawyer's personal opinion as to the guilt or innocence of an accused (American Bar Association, p. 325). Thus, a defense lawyer may not state in closing that he or she has a reasonable doubt of the client's guilt, but an argument that the evidence at trial clearly raises a reasonable doubt would be proper.

Another, perhaps obvious, restriction on final arguments is that the arguments in closing must be tied to the evidence developed at trial. Inferences and conclusions from the evidence at trial can be argued quite freely, but to mention evidence that was never presented (and perhaps even ruled inadmissible by the trial judge) would be improper.

Still another limitation on closings is related to the defendant's decision whether or not to testify. This decision is often a very important tactical one. For example, if a testifying defendant has been convicted of other serious crimes, the prosecution will often be permitted to attack the defendant's credibility by asking about these convictions and showing that the defendant has indeed been previously convicted. In such a situation a defendant thus must balance the importance of his or her testimony against the fact that the jury will learn of other convictions if he or she testifies.

If the defendant decides not to testify, a prosecutor may not comment in the closing argument on the fact that the defendant did not choose to testify. In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court indicated that comment by the prosecution on the defendant's failure to testify would violate the Fifth Amendment privilege against compelled self-incrimination. Thus in the closing argument the prosecutor may not argue that an adverse inference should be drawn from the defendant's silence at the trial. To back up this prohibition, if requested by the defendant, the trial judge will specifically instruct the jury that no adverse inference should be drawn from the defendant's decision not to testify.

Instructions to the jury. In speaking of instructions to the jury, it is natural to think first of the instructions at the end of the trial. But although these instructions are of crucial importance, there are often other occasions during the trial when the jury is instructed by the judge. Some judges choose to give a brief instruction on the law controlling the case at the beginning of the trial. Even during the trial, a judge may stop the taking of testimony to instruct the jury about the law surrounding an item of evidence. Thus, to continue the example above, when a defendant is impeached with a prior conviction, a judge should immediately instruct the jury that the conviction can be considered only as it bears on the defendant's credibility and not as evidence of his guilt.

However, it is at the end of trial that the judge gives the complete body of instructions to the jury. The instructions, of course, go into careful detail on the meaning of each of the elements of the crime, but they also cover many other general matters. A jury is usually instructed on such varied matters as the prosecution's burden of proof and the presumption of innocence, the meaning of reasonable doubt, the use of circumstantial evidence, the credibility of witnesses, the jury's role as fact finder, any defenses that have been raised, and the procedures to be followed in the jury room.

Before the judge instructs the jury, the prosecution and the defense will have an opportunity to submit instructions they wish the judge to give the jury. There will also usually be a conference between the judge and the lawyers outside of the hearing of the jury at which the judge hears argument from the lawyers about the instructions to be given.

If, during its deliberations, the jury feels that it needs more guidance, it so informs the judge, and the judge may repeat or further clarify any of the earlier instructions. In addition, if the jury is having difficulty in reaching a verdict, the judge often gives a supplemental instruction asking members of the jury to listen carefully to the arguments of other jurors and encouraging them not to hesitate to reexamine their own views (Lowenfeld v. Phelps, 484 U.S. 231, 235 (1988)).

The verdict. In civil trials a jury may be instructed to return either a general verdict (in which the jury simply indicates that it has determined the case for one of the sides) or a special verdict (which can be a rather lengthy list of specific questions on which the jury must reach agreement). As a practical matter in criminal cases, however, juries are always asked to return a general verdict of guilty or not guilty. Indeed, it has even been suggested that a special verdict may be an unconstitutional interference with the right to a jury trial (United States v. Spock, 416 F.2d 165 (1st Cir. 1969)).

In federal courts and in the courts of most states, the verdict of the jury must be unanimous. This is not a constitutional requirement because the Supreme Court in Apodaca v. Oregon, 406 U.S. 404 (1972), upheld an Oregon constitutional provision that permitted ten members of a twelve-person jury to render a guilty verdict in a noncapital case. But only Oregon and Louisiana permit nonunanimous jury verdicts in criminal cases.

Of course, not all juries are able to reach a verdict. When a jury indicates that it is deadlocked, the judge usually asks it to continue deliberations until the judge is convinced that further deliberations would be futile. If no verdict can be reached despite continued deliberations, the judge will order the jury discharged. In the event that the first trial ended in a deadlocked ("hung") jury, there is no double jeopardy bar to trying the defendant again.

William T. Pizzi

See also Adversary System; Burden of Proof; Civil and Criminal Divide; Confessions; Counsel: Role of Counsel; Criminal Justice Process; Criminal Procedure: Constitutional Aspects; Criminal Procedure: Comparative Aspects; Cross-Examination; Discovery; Exclusionary Rule; Jury: Behavioral Aspects; Jury: Legal Aspects; Publicity in Criminal Cases; Venue.


American Bar Association, Center for Professional Responsibility. Annotated Model Rules of Professional Responsibility. 3d ed. Chicago: ABA, 1996.

Devitt, Edward J.; Blackmar, Charles B.; and Wolff, Michael A. Federal Jury Practice and Instructions, vol. 1. 4th ed. St. Paul, Minn.: West, 1987.

Frank, Jerome. Courts on Trial: Myth and Reality in American Justice. Princeton, N.J.: Princeton University Press, 1949.

Frankel, Marvin E. Partisan Justice. New York: Hill & Wang, 1980.

Mauet, Thomas A. Fundamentals of Trial Techniques. 4th ed. Boston: Little, Brown, 1996.

Pizzi, William T. Trials without Truth: Why Our Criminal Justice System Has Become an Expensive Failure and What We Need to Do to Rebuild It. New York: NYU Press, 1999.

Strier, Franklin. Reconstructing Justice: An Agenda for Trial Reform. Chicago: University of Chicago Press, 1994.

Strong, John William, ed. McCormick on Evidence. 4th ed. St. Paul, Minn.: West, 1992. With periodic supplements.


Apodaca v. Oregon, 406 U.S. 404 (1972).

Griffin v. California, 380 U.S. 609 (1965).

In re Winship, 397 U.S. 358 (1970).

Lowenfeld v. Phelps, 484 U.S. 231, 235 (1988).

Rideau v. Louisiana, 373 U.S. (1963).

Sheppard v. Maxwell, 384 U.S. 333 (1966).

United States v. Spock, 416 F.2d 165 (1st Cir. 1969).

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Trials, Criminal (U.S. Law)

Trials, Criminal (U.S. Law)

Criminal trials in the United States are governed by criminal law, defined as the body of law charged with the definition of criminal offenses, and the regulation of apprehension, charging, and trial of suspected individuals. Criminal law delineates penalties and specifies appropriate and applicable means and modes of treatment for convicted offenders.

Criminal law refers to offenses committed against the general public, even though the victim of the crime may be a single individual. It is distinguished from civil or tort law in that they (civil and tort law) refer to offenses constituting private injuries. Historically, criminal law has taken the approach that crime is morally, as well as legally, wrong. As a result, amends must be made and retribution for the offense must be exacted through the use of the criminal trial and penalty systems, in a proportion appropriate to the magnitude of the criminal act and the degree of culpability of the perpetrator. More modern views of criminal law have taken the perspective that it ought to serve as a deterrent to the commission of crime. As the tenets of the social and behavioral sciences have been progressively incorporated into the rubric of criminal justice, the concepts of rehabilitation of the criminal offender, and the need for protection of the public welfare have arisen. Among the goals of the criminal legal system are prevention, early intervention, and active deterrence from development and expression of criminal behaviors.

Although American criminal law was derived from English common law, it has some important differences. Primary among the differences is the principle that a person may not be tried for an offense unless it is specified in the statutory code of the state. In all American state systems, there is a rule that judicial proceedings must be fair and impartial, that the rights of the accused, as well as the accuser, must not be violated, and that society must be protected. Individuals have the right to be safe in their environments.

Criminal law is comprised of (1) definitions of the types of punishable offenses; (2) the standardized system for classifying crimes, by severity of general harm inflicted, as misdemeanors or felonies; (3) the specifications applied to the judgment of crime that indicate specific provisions or mitigations for criminal legislation, such as insanity, degree of mental illness (often utilized by the terminology of "guilty, but mentally ill"), necessity, and self-defense; and (4) guidelines for determining national jurisdiction over crimes with an international aspect, such as crimes committed on American soil by foreign nationals, crimes committed by Americans who are located in other countries, and crimes committed on aircraft or maritime vessels located in international waters.

The framework for the procedure and practice of criminal law is embedded in the principle of legality. First, it states that crimes can only be defined in the context of a law prohibiting a specific behavior. If there is no law against a particular act, its occurrence is not a crime. Second, criminal statutes must be rigorously adhered to; they must be construed fairly and consistently, with little or no ambiguity as to their interpretation. Third, and quite importantly, laws may not be applied retroactively; a person may not be tried according to a law enacted after the commission of the crime. Fourth, the language of the law, and the wording of criminal statutes, must be clear, direct, and unambiguous: individuals should be able to clearly understand the concept of violation of specific laws, as well as the potential penalties associated with the possible infraction. Lastly, a person may not generally be tried for the same offense twice (this is also referred to as double jeopardy). In the federal system of the United States, a person may be tried for the same crime in different judicial systems; that is, a person can be subject to both a criminal and a civil trial for a single offense. The principle of the statute of limitations provides the maximum amount of time that can elapse between the commission of a crime and the trial associated with it: generally speaking, the amount of time that may elapse between arrest and indictment and the commencement of the criminal trial can vary according to the seriousness of the offense. In the United States, there is no statute of limitations imposed on crimes considered to be the most heinous, including capital felonies (felony crimes punishable by death).

The principle of legal jurisdiction refers to the capacity of a court in a specific geographic region or, in the case of international crime, a country to take valid legal action. Many countries assert jurisdiction over the acts of their nationals even when they are in other countries, and refuse to turn over their citizens to law enforcement agencies in other countries in which their nationals are accused of the commission of a crime or crimes. American nationals who commit crimes in other countries may only be extradited if that is authorized or required by a valid treaty with the affected country.

In the United States, within-country jurisdiction is typically limited to criminal acts occurring in part, or in entirety, within the geographic boundaries of a single state. Historically, if a crime was committed that crossed territorial lines, such as a person in one state throwing an incendiary device across state lines and causing an explosion in a building on the other side of the state line, only the state with the explosion might be considered to have jurisdiction. In modern legal practice, many states have enacted statutes allowing them to extend their jurisdictional boundaries to encompass offenses in which the relevant conduct, or the relevant result, or any part of it, occurred in the specific state. Federal statutes give jurisdiction to United States courts in cases of forgery of ship's papers, bribery of an American official, acts of treason, enticing to commit desertion from the service of the United States military, crimes committed on vessels registered to the United States or on American aircraft flying over international airspace, and similar acts, whether or not those acts actually occurred within the geographic boundaries of the U.S.

There are two mandatory components of an act that lead to definition of a crime. It must be a voluntary action or voluntary omission of an action (legal term: actus reus ); and it must be accompanied by a specific mental state, referred to as the guilty mind (legal term: mens rea ). There are four types of guilty mental state: acting negligently, recklessly, knowingly, or purposely.

The critical defining feature of the act is its volitional nature. A person may not be held criminally responsible for an act committed when they could not exert voluntary control of their behavior, for example, a crime occurring during a seizure or when the individual is in a state of altered unconsciousness not induced by ingestion of illegal substances. In order to be held criminally responsible for committing an act, the perpetrator must act in some way so as to cause its occurrence; it must be possible to establish a cause and effect relationship between the outcome of the act and the individual accused of perpetrating it. An individual may also be held criminally liable for failure to commit an action when he or she was legally responsible for doing so. For example, parents may be criminally prosecuted for failure to meet their obligation to provide food and water for their children.

There are some criminal offenses for which an individual can be charged without demonstrable evidence of a guilty mental state; one of these is statutory rape. An individual need not be aware that the child is below the age of legal consent in order to be prosecuted. Others fall into the category of public welfare offenses, involving such acts as those which endanger public health or safety.

United States criminal law makes a distinction between the concept of ignorance of the facts (in other words, a mistake) and ignorance of the law. In the former, a person is not held liable if he or she unwittingly commits an infraction such as inadvertently picking up the suitcase of another person from a luggage carousel at the airport when it is identical in appearance to his or her own. It is not theft if the baggage was taken without the intention to steal, but rather as a result of the person taking the item believing it to be his or her own personal property. Conversely, being unaware of the text of the law does not excuse a person from prosecution for violating it. It is a commonly held doctrine that criminal acts should be recognized as immoral, societally unacceptable, or harmful by any reasonable adult.

The issue of criminal responsibility has remained controversial in the American criminal system. Historically, a person was not charged with criminal responsibility if he or she either lacked substantial capacity to appreciate the criminality of his or her conduct or to be able to exercise volitional control over conforming his or her behavior to the extent required by law. The more modern interpretation of the principle looks more strictly at the ability to appreciate the distinction between right and wrong and leaves out the segment on ability to exert control over one's behavior.

The criminal system considers four degrees of participation in a crime. A principal in the first degree is one who commits a crime alone; a principal in the second degree is one who acts to aid the principal in the first degree and is present when the crime occurs; an accessory before the fact is one who instigates, counsels the perpetrator, or encourages the commission of the crime; and an accessory after the fact is a person who receives, conceals, or otherwise assists someone known to have committed a crime, in an effort to obstruct justice from being served. A conspiracy is when two or more individuals agree to act together in order to commit a crime.

Finally, there is the issue of effectiveness of punishment as a deterrent to the commission of future crimes. There is little evidence to suggest that this is an effective paradigm. If the most likely predictor of future behavior is past behavior, criminals who have already been convicted, or who have served prison terms, are more likely to commit future crimes than those who have never done so. Justice system statistics suggest that the degree of punishment is not a deterrent, in that lenient and stringent penalties appear to be equally effective (or ineffective) at preventing recidivism (repeat criminal behavior). Brief sentences are often considered particularly ineffective in that they remove the offender from providing for his or her family for long enough to lose employment but allow enough time to acclimate to being a convict and foster ostracizing from society upon release, yet they are not necessarily long enough to provide benefit from any sort of rehabilitation program. Long-term sentences are tantamount to institutionalization, and encourage complete indoctrination into the prison culture. Forensic psychiatric studies show that the most positive results occur when the principle of least restrictive means is employed; incarcerated individuals are given as much freedom for personal growth as possible within the confines of the penal system and are made to accept personal responsibility for their well-being by means of treatment, employment, education, job training, etc., in order to facilitate a productive transition back into society upon release.

see also Criminal responsibility, historical concepts; Mens rea ; Misdemeanor; Trials, civil (U.S law); Trials, international.

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