A jury forewoman reads the - U.S. Embassy & … jury forewoman reads the verdict in court. The Sixth...

A jury forewoman reads theverdict in court. The SixthAmendment of the Constitutionguarantees Americans the right toan impartial jury.

THECRIMINAL

COURT PROCESS

C H A P T E R

5

The criminal process begins when alaw is first broken and extendsthrough the arrest, indictment, trial,and appeal. There is no single crimi-nal, or civil, court process in the United States. Instead, the federal system has a court process at the national level, and each state and terri-tory has its own set of rules and regu-lations that affect the judicial process.Norms and similarities do exist amongall of these governmental entities,and the discussion will focus primarilyon these, but no two states have iden-tical judicial systems and no state’s sys-tem is identical to that of the nationalgovernment.

THE NATURE ANDSUBSTANCE OF CRIME

An act is not automatically acrime because it is hurtful orsinful. An action constitutes a

true crime only if it specifically vio-lates a criminal statute duly enacted byCongress, a state legislature, or someother public authority. A crime, then,is an offense against the state punish-able by fine, imprisonment, or death.A crime is a violation of obligationsdue the community as a whole andcan be punished only by the state. Thesanctions of imprisonment and deathcannot be imposed by a civil court orin a civil action (although a fine maybe a civil or a criminal penalty).

In the United States most crimesconstitute sins of commission, such asaggravated assault or embezzlement; a

few consist of sins of omission, such asfailing to stop and render aid after atraffic accident or failing to file an in-come tax return. The state considerssome crimes serious, such as murderand treason, and this seriousness is re-flected in the corresponding punish-ments, such as life imprisonment orthe death penalty. The state considersothers crimes only mildly reprehensi-ble, such as double parking or disturb-ing the peace, and consequently punishments of a light fine or a nightin the local jail are akin to an officialslap on the wrist.

Some crimes, such as kidnappingor rape, constitute actions that virtual-ly all citizens consider outside thesphere of acceptable human conduct,whereas other crimes constitute ac-tions about which opinion would bedivided. For example, an 1897 Michi-gan statute makes it illegal to curse infront of a child, and a Nebraska lawforbids bingo games at church sup-pers. Other criminal statutes are plain-ly silly: In Wisconsin it is illegal to singin a bar, and in Louisiana it is forbid-den to appear drunk at a meeting of aliterary society.

The most serious crimes in theUnited States are felonies. In a majori-ty of the states a felony is any offensefor which the penalty may be death (instates that allow it) or imprisonmentin the penitentiary (a federal or stateprison); all other offenses are misde-meanors or infractions. In other states,and under federal law, a felony is an

92 OUTLINE OF THE U.S. LEGAL SYSTEM

offense for which the penalty may bedeath or imprisonment for a year ormore. Thus, felonies are distinguishedin some states according to the placewhere the punishment occurs; in somestates and according to the federalgovernment, the length of the sentenceis the key factor. Examples of feloniesinclude murder, forcible rape, andarmed robbery.

Misdemeanors are regarded as pettycrimes by the state, and their punish-ment usually consists of confinementin a city or county jail for less than ayear. Public drunkenness, small-timegambling, and vagrancy are commonexamples of misdemeanor offenses.Some states have a third category ofoffense known as infractions. Oftenthey include minor traffic offenses,such as parking violations, and thepenalty is usually a small fine. Finesmay also be part of the penalty formisdemeanors and felonies.

CATEGORIES OF CRIME

Five broad categories that com-prise the primary criminal of-fenses in the United States today

are conventional, economic, syndicat-ed, political, and consensual.

Conventional Crimes

Property crimes make up the lion’sshare of the 31.3 million conventionalcrimes committed annually in theUnited States. Property crimes are dis-tinguished by the government fromcrimes of violence, although the two

often go hand in glove. For example,the thief who breaks into a house andinadvertently confronts a resistantowner may harm the owner and thusbe involved in more than just theproperty crime of burglary.

The less numerous, but morefeared, conventional crimes are thoseagainst the person. These crimes ofviolence include murder and nonneg-ligent manslaughter, forcible rape,robbery, and aggravated assault.

Economic Crimes

There are four broad categories of eco-nomic crimes:• Personal crimes consist of nonviolent

criminal activity that one personinflicts on another with the hope ofmonetary gain. Examples includeintentionally writing a bad check,cheating on one’s income tax, andcommitting welfare fraud.

• Abuse of trust occurs when businessor government employees violatetheir fidelity to their employer orclients and engage in practices suchas commercial bribery, theft andembezzlement from the workplace,and filling out false expense accounts.

• Business crimes are crimes that arenot part of the central purpose of thebusiness enterprise but are incidentalto (or in furtherance of) it. Mis-leading advertising, violations of theantitrust laws, and false depreciationfigures computed for corporateincome tax purposes are all business crimes.

CHAPTER 5: THE CRIMINAL COURT PROCESS 93

• Con games are white-collar criminalactivities committed under the guiseof a business.

Syndicated, or Organized, Crimes

Syndicated crime is engaged in bygroups of people and is often directedon some type of hierarchical basis. Itrepresents an ongoing activity that isinexorably entwined with fear andcorruption. Organized crime tends tofocus on areas that are particularly lucrative, such as trafficking in illegaldrugs, gambling, prostitution, andloan-sharking (money-lending at ex-orbitant interest rates and high repay-ment rates).

Political Crimes

Political crime usually con-stitutes an offense againstthe government: treason,armed rebellion, assassina-tion of public officials, andsedition. However, the termhas come to include crimescommitted by the govern-ment against individual cit-izens, dissident groups, andforeign governments or na-tionals — for example, ille-gal wiretaps conducted bythe government of politi-cally dissident groups orthe refusal of the military to investigate incidents ofsexual harassment.

Consensual Crimes

So-called victimless crime, such asprostitution, gambling, illegal druguse, and unlawful sexual practices be-tween consenting adults, is called con-sensual because both perpetrator andclient desire the forbidden activity.

ELEMENTS OF A CRIME

Every crime has several distinctelements, and unless the state isable to demonstrate in court the

existence of these essential elementsthere can be no conviction. Althoughthe judicial process in the courtroommay not focus separately and distinct-ly on each of these elements, they areat least implicit throughout the entire


Syndicated crime is one of five broad categories thatcomprise the primary criminal offenses in the UnitedStates today. At this June 20, 2002, press conference, U.S.Attorney General for the Southern District of New YorkJames Comey, left, and Kevin Donovan, right, assistantdirector of the New York FBI field office, announce theindictment of 14 alleged members of the Gambinoorganized crime family in New York.

process of duly convicting someone of a criminal offense.

A Law Defining the Crime and thePunishment

If an act is to be prohibited or re-quired by the law, a duly constitutedauthority (usually Congress or a statelegislature) must properly spell outthe matter so that the citizenry canknow in advance what conduct is pro-hibited or required. Lawmakers mustalso set forth the penalties to be im-posed upon the individual who en-gages in the harmful conduct.

There are several corollaries to thisgeneral principle. One is that the U.S.Constitution forbids criminal laws thatare ex post facto, that is, laws that de-clare certain conduct to be illegal afterthe conduct takes place. Likewise, thestate may not pass bills of attainder,which are laws that single out a partic-ular person or group of persons anddeclare that something is criminal forthem but legal for everyone else. A finalcorollary is that a law defining a crimemust be precise so that the averageperson can determine in advance whatconduct is prohibited or required.

The Actus Reus

“Actus reus” is the Latin phrase mean-ing the criminal action committed bythe accused that gives rise to the legalprosecution. The actus reus is the material element of the crime. This element may be the commission of anaction that is forbidden (for instance,

assault and battery), or it may be thefailure to perform an action that is required (for instance, a person’s refusal to stop and render aid to amotor vehicle accident victim).

The Mens Rea

The “mens rea” (a Latin term) is theessential mental element of the crime.The U.S. legal system has always madea distinction between harm that wascaused intentionally and harm thatwas caused by simple negligence oraccident. Thus, if one person takes the life of another, the state does notalways call it murder. If the killing was done with malice aforethought bya sane individual, it will likely betermed “murder in the first degree.”But if the killing occurred in the passion of a barroom brawl, it wouldmore likely be called “second-degreemurder,” which carries a lesser penal-ty. Reckless driving on the highwaythat results in the death of anotherwould correspondingly be considered“negligent homicide” — a wrong, tobe sure, but not as serious in the eyesof the state as the intentional killing of another.

An Injury or Result

A crime consists of a specific injury ora wrong perpetrated by one personagainst another. The crime may harmsociety at large, such as selling militarysecrets to a foreign government, or theinjury may be inflicted upon an indi-vidual and, because of its nature, is


considered to offend society as awhole. The nature of the injury, aswith the mens rea, often determinesthe nature of the crime itself. For example, consider two drivers whohave been cutting each other off intraffic. Finally they both stop theircars and come out fighting. Supposeone of them hits the other so hard hedies. The crime may be murder (ofsome degree). If the man does not diebut suffers serious bodily harm, thecrime is aggravated assault. If the injury is minor, the charge may besimple assault. Because the nature ofthe injury often determines the of-fense, it is frequently asserted that thenature of the injury is the key legal element of the crime.

Some actions may be criminal eventhough no injury is actually inflicted.Most crimes of criminal conspiracyfall into this category. For instance, ifseveral persons were to plan to assassi-nate a judge or to bribe jurors in an at-tempt to keep a criminal from beingconvicted, the crime would be con-spiracy to obstruct justice. This wouldbe a crime even if the judge went un-harmed and no money was everpassed to the jurors. All that is re-quired is that the crime be plannedand intended and that some specific,overt act be taken by one of the con-spirators in furtherance of their plan(such as the purchase of a weapon orpossession of a map of the route thatthe judge takes between his home andthe courtroom).

A Causal Relationship Between theAction and the Resultant Injury

Before there can be a conviction for acriminal offense, the state must provethat the accused, acting in a naturaland continuous sequence, producedthe harmful situation. Usually provinga causal relationship is not difficult. If“Bill” stabs “John” with a knife and in-flicts a minor wound, there is nodoubt that Bill is guilty of assault witha deadly weapon. But what if Johndoes not obtain proper medical carefor the wound, develops an infection,and subsequently dies? Is Bill nowguilty of manslaughter or murder? Orwhat if after being stabbed, Johnstumbles across a third party andcauses injury to her? Is Bill to blamefor this, too?

Resolution of questions such asthese are often difficult for judges andjuries. The law requires that all cir-cumstances be taken into account.The accused can be convicted only ifthe state can prove that his or her con-duct is the direct, immediate, or deter-mining cause of the resultant harm tothe victim.

PROCEDURES BEFORE ACRIMINAL TRIAL

Before a criminal trial can beheld, federal and state laws re-quire a series of procedures and

events. Some of these stages are man-dated by the U.S. Constitution andstate constitutions, some by court de-cisions, and others by legislative en-


actments. Custom and tradition oftenaccount for the rest. Although the exactnature of these procedural events variesfrom federal to state practice — andfrom one state to another — there aresimilarities throughout the country.These procedures, however, are not asautomatic or routine as they might ap-pear; rather, the judicial system’s deci-sion makers exercise discretion at allstages according to their values, atti-tudes, and views of the world.

The Arrest

The arrest is the first substantial con-tact between the state and the accused.The U.S. legal system provides for twobasic types of arrest — those with awarrant and those without. A warrantis issued after a complaint, filed by oneperson against another, has been pre-sented and reviewed by a magistratewho has found probable cause for thearrest. Arrests without a warrant occurwhen a crime is committed in thepresence of a police officer or when anofficer has probable cause to believethat someone has committed (or isabout to commit) a crime. Such a be-lief must later be established in asworn statement or testimony. In theUnited States up to 95 percent of allarrests are made without a warrant.

An officer’s decision whether tomake an arrest is far from simple orautomatic. To be sure, the officer whowitnesses a murder will make an arreston the spot if possible. But most law-breaking incidents are not that simple

or clear-cut, and police officials pos-sess — and exercise — wide discretionabout whether to take someone intocustody. Sufficient resources are sim-ply not available to the police for themto proceed against all activities thatCongress and the legislatures have for-bidden. Consequently, discretion mustbe exercised in determining how to al-locate the time and resources that doexist. Police discretion is at a maxi-mum in several areas.

Trivial Offenses. Many police manualsadvise their officers that when minorviolations of the law are concerned,a warning is a more appropriate response than an arrest. Traffic viola-tions, misconduct by juveniles, drunk-enness, gambling, and vagrancy allconstitute less serious crimes and en-tail judgment calls by police.

Victim Will Not Seek Prosecution.Nonenforcement of the law is also therule in situations where the victim of acrime will not cooperate with the po-lice in prosecuting a case. In the in-stance of minor property crimes, forexample, the victim is often satisfied ifrestitution occurs and the victim can-not afford the time to testify in court.Unless the police have expended considerable resources in investigatinga particular property crime, they aregenerally obliged to abide by the victim’s wishes.

When the victim of a crime is in acontinuing relationship with the crim-


inal, the police often decline to makean arrest. Such relationships includelandlord and tenant, one neighborand another, and, until recently,husband and wife. In this last case,however, heightened awareness of do-mestic violence has had a significantimpact on police procedures.

Rape and child molestation consti-tute another major category of crimesfor which there are often no arrestsbecause the victims will not or cannotcooperate with the police. Oftentimesthe victim is personally acquaintedwith, or related to, the criminal, andthe fear of reprisals or of ugly publicityinhibits the victim from pressing a complaint.

Victim Also Involved in Misconduct.When police officers perceive that thevictim of a crime is also involved insome type of improper or question-able conduct, the officers frequentlyopt not to make an arrest.

Appearance Before a Magistrate

After a suspect is arrested for a crime,he or she is booked at the police station; that is, the facts surroundingthe arrest are recorded and the accused may be fingerprinted and photographed. Next the accused appears before a lower-level judicialofficial whose title may be judge,magistrate, or commissioner. Such anappearance is supposed to occur“without unnecessary delay”; in 1991the U.S. Supreme Court ruled that

police may detain an individual arrested without a warrant for up to48 hours without a court hearing onwhether the arrest was justified.

This appearance in court is the oc-casion of several important events inthe criminal justice process. First, theaccused must have been informed ofthe precise charges and must be in-formed of all constitutional rights and guarantees. Among others, theserights include those of the now fa-mous Miranda v. Arizona decisionhanded down in 1966 by the SupremeCourt. The accused “must be warnedprior to any questioning that he hasthe right to remain silent, that any-thing he says can be used against himin a court of law, that he has the rightto the presence of an attorney, andthat if he cannot afford an attorneyone will be appointed for him prior toany questioning.” (Such warningsmust also be given by the arresting of-ficer if the officer questions the sus-pect about the crime.) In some statesthe accused must be informed aboutother rights that are provided for inthe state’s Bill of Rights, such as theright to a speedy trial and the right toconfront hostile witnesses.

Second, the magistrate will deter-mine whether the accused is to be re-leased on bail and, if so, what theamount of bail is to be. Constitution-ally, the only requirement for theamount is that it shall not be “exces-sive.” Bail is considered to be a privi-lege — not a right — and it may be


denied altogether in capital punish-ment cases for which the evidence ofguilt is strong or if the magistrate be-lieves that the accused will flee fromprosecution no matter what theamount of bail. An alternative to bailis to release the defendant on recogni-zance, basically on a pledge by the defendant to return to court on theappointed date for trial.

In minor cases the accused may beasked to plead guilty or not guilty. Ifthe plea is guilty, a sentence may bepronounced on the spot. If the defen-dant pleads not guilty, a trial date isscheduled. However, in the typical seri-ous (felony) case, the next primaryduty of the magistrate is to determinewhether the defendant requires a pre-liminary hearing. If such a hearing isappropriate, the matter is adjourned by

the prosecution and a subsequent stageof the criminal justice process begins.

The Grand Jury Process or thePreliminary Hearing

At the federal level all persons accusedof a crime are guaranteed by the FifthAmendment to have their cases con-sidered by a grand jury. However, theSupreme Court has refused to makethis right binding on the states. Todayonly about half of the states use grandjuries; in some of these, they are used for only special types of cases.Those states that do not use grand juries employ a preliminary hearing or an examining trial. (A few states useboth procedures.) Regardless of whichmethod is used, the primary purposeof this stage in the criminal justiceprocess is to determine whether there


Since 1966, police have had to advise suspects about their rights prior to anyinterrogation. They use the so-called “Miranda Warning,” named after ErnestoMiranda, who was granted a retrial because he was not advised about his rights.

is probable cause for the accused to be subjected to a formal trial.

The Grand Jury. Grand juries consistof 16 to 23 citizens, usually selected atrandom from the voter registrationlists, who render decisions by a ma-jority vote. Their terms may last any-where from one month to one year,and some may hear more than a thou-sand cases during their term. Theprosecutor alone presents evidence tothe grand jury. Not only are the ac-cused and his or her attorney absentfrom the proceedings, but usually theyalso have no idea which grand jury ishearing the case or when. If a majoritybelieves probable cause exists, then anindictment, or true bill, is brought.Otherwise the result is a no bill.

Historically two arguments havebeen made in favor of grand juries.One is that grand juries serve as a checkon a prosecutor who might be usingthe office to harass an innocent personfor political or personal reasons. Ideal-ly an unbiased group of citizens wouldinterpose themselves between an un-ethical prosecutor and the defendant.A second justification for grand juriesis to make sure that the district attor-ney has secured enough evidence towarrant the trouble and expense — forboth the state and the accused — of afull-fledged trial.

The Preliminary Hearing. In themajority of states that have abolishedthe grand jury system, a preliminary

hearing is used to determine whetherthere is probable cause for the accusedto be bound over for trial. At thishearing the prosecution presents itscase, and the accused has the right tocross-examine witnesses and to pro-duce favorable evidence. Usually thedefense elects not to fight at this stageof the criminal process; in fact, a pre-liminary hearing is waived by the de-fense in the vast majority of cases.

If the examining judge determinesthat there is probable cause for a trialor if the preliminary hearing is waived,the prosecutor must file a bill ofinformation with the court where thetrial will be held. This serves to outlineprecisely the charges that will be adju-dicated in the new legal setting.

The Arraignment

Arraignment is the process in whichthe defendant is brought before thejudge in the court where he or she is to be tried to respond to the grandjury indictment or the prosecutor’sbill of information. The prosecutor ora clerk usually reads in open court the charges that have been broughtagainst the accused. The defendant isinformed that he or she has a consti-tutional right to be represented by anattorney and that a lawyer will be ap-pointed without charge if necessary.

The defendant has several optionsabout how to plead to the charges. Themost common pleas are guilty and notguilty. But the accused may also pleadnot guilty by reason of insanity, for-


mer jeopardy (having been tried on thesame charge at another time), or “nolocontendere” (from the Latin, no con-test). Nolo contendere means that theaccused does not deny the facts of thecase but claims that he or she has notcommitted any crime, or it may meanthat the defendant does not under-stand the charges. The nolo contendereplea can be entered only with the con-sent of the judge (and sometimes theprosecutor as well). Such a plea hastwo advantages. It may help the ac-cused save face vis-à-vis the public be-cause he or she can later claim thattechnically no guilty verdict wasreached even though a sentence or afine may have been imposed. Also, theplea may spare the defendant fromcertain civil penalties that might fol-low a guilty plea (for example, a civilsuit that might follow from convictionfor fraud or embezzlement).

If the accused pleads not guilty, thejudge will schedule a date for a trial. Ifthe plea is guilty, the defendant may besentenced on the spot or at a later dateset by the judge. Before the court willaccept a guilty plea, the judge mustcertify that the plea was made volun-tarily and that the defendant wasaware of the implications of the plea.A guilty plea is to all intents and purposes the equivalent to a formalverdict of guilty.

The Possibility of a Plea Bargain

At both the state and federal levels atleast 90 percent of all criminal cases

never go to trial. That is because be-fore the trial date a bargain has beenstruck between the prosecutor and thedefendant’s attorney concerning theofficial charges to be brought and thenature of the sentence that the statewill recommend to the court. In effect,some form of leniency is promised inexchange for a guilty plea.

Because plea bargaining virtuallyseals the fate of the defendant beforetrial, the role of the judge is simply toensure that the proper legal and con-stitutional procedures have been fol-lowed. There are three (not mutuallyexclusive) types of plea bargains.

Reduction of Charges. The mostcommon form of agreement betweena prosecutor and a defendant is a reduction of the charge to one less se-rious than that supported by the evi-dence. This exposes the criminal to asubstantially reduced range of sen-tence possibilities. A second reason fora defendant to plead guilty to a re-duced charge is to avoid a record ofconviction for an offense that carries asocial stigma. Another possibility isthat the defendant may wish to avoid afelony record altogether and would bewilling to plead guilty to almost anymisdemeanor offered by the prosecu-tor rather than face a felony charge.

Deletion of Tangent Charges. A sec-ond form of plea bargain is the agree-ment of the district attorney to dropother charges pending against an indi-


vidual. There are two variations onthis theme. One is an agreement not toprosecute “vertically” — that is, not toprosecute more serious charges filedagainst the individual. The secondtype of agreement is to dismiss “hori-zontal” charges; that is to dismiss ad-ditional indictments for the samecrime pending against the accused.

Another variation of this type ofplea bargaining is the agreement inwhich a repeater clause is droppedfrom an indictment. At the federallevel and in many states, a person isconsidered a habitual criminal uponthe third conviction for a violentfelony anywhere in the United States.The mandatory sentence for the habit-ual criminal is life imprisonment. Instate courts the habitual criminalcharge often is dropped in exchangefor a plea of guilty.

Another plea bargain of this type isthe agreement in which indictments indifferent courts are consolidated intoone court in order that the sentencesmay run concurrently. As indictmentsor preliminary hearing rulings arehanded down in many jurisdictions,they are placed on a trial docket on arotation system. This means that a de-fendant charged with four counts offorgery and one charge of possessionof a forged instrument might beplaced on the docket of five differentcourts. Generally it is common prac-tice in such multicourt districts totransfer all of a person’s indictmentsto the first court listed. This gives the

presiding judge the discretion of al-lowing all of the defendant’s sentencesto run concurrently.

Sentence Bargaining. A third formof plea bargaining concerns a plea ofguilty from the defendant in exchangefor a prosecutor’s agreement to ask thejudge for a lighter sentence. Thestrength of the sentence negotiation isbased upon the realities of the limitedresources of the judicial system. At thestate level, at least, prosecutors are ableto promise the defendant a fairly spe-cific sentence with confidence that thejudge will accept the recommenda-tion. If the judge were not to do so, theprosecutor’s credibility would quicklybegin to wane, and many of the defen-dants who had been pleading guiltywould begin to plead not guilty andtake their chances in court. The resultwould be a gigantic increase in courtdockets that would overwhelm the judicial system and bring it to a stand-still. Prosecutors and judges under-stand this reality, and so do the defense attorneys.

Constitutional and Statutory Re-strictions on Plea Bargaining. Atboth the state and federal levels, therequirements of due process of lawmean that plea bargains must be madevoluntarily and with comprehension.This means that the defendant mustbe admonished by the court of theconsequences of a guilty plea (for ex-ample, the defendant waives all oppor-


tunities to change his or her mind at alater date), that the accused must besane, and that, as one state puts it, “Itmust plainly appear that the defen-dant is uninfluenced by any consider-ation of fear or by any persuasion, ordelusive hope of pardon promptinghim to confess his guilt.”

For the first two types of plea bar-gains — reduction of charges anddeletion of tangent charges — somestricter standards govern the federalcourts. One is that the judge may notactually participate in the process ofplea bargaining; at the state leveljudges may play an active role in thisprocess. Likewise, if a plea bargain hasbeen made between the U.S. attorneyand the defendant, the governmentmay not renege on the agreement. Ifthe federal government does so, thefederal district judge must withdrawthe guilty plea. Finally, the FederalRules of Criminal Procedure requirethat before a guilty plea may be ac-cepted, the prosecution must present a summary of the evidence against the accused, and the judge must agreethat there is strong evidence of the defendant’s guilt.

Arguments For and Against PleaBargaining. For the defendant theobvious advantage of the bargain isthat he or she is treated less harshlythan would be the case if the accusedwere convicted and sentenced undermaximum conditions. Also, the ab-sence of a trial often lessens publicity

on the case, and because of personalinterests or social pressures, the ac-cused may wish to avoid the lengthand publicity of a formal trial. Finally,some penologists (professionals in thefield of punishment and rehabilita-tion) argue that the first step towardrehabilitation is for a criminal toadmit guilt and to recognize his or her problem.

Plea bargaining also offers somedistinct advantages for the state andfor society as a whole. The most obvious is the certainty of conviction,because no matter how strong the evidence may appear, an acquittal isalways a possibility as long as a trial ispending. Also, the district attorney’soffice and judges are saved an enormous amount of time and effortby their not having to prepare and preside over cases in which thereis no real contention of innocence or that are not suited to the trialprocess. Finally, when police officersare not required to be in court testify-ing in criminal trials, they have moretime to devote to preventing and solving crimes.

Plea bargains do have a negativeside as well. The most frequent objec-tion to plea bargaining is that the de-fendant’s sentence may be based uponnonpenological grounds. With thelarge volume of cases making plea bar-gaining the rule, the sentence oftenbears no relation to the specific factsof the case, to the correctional needs ofthe criminal, or to society’s legitimate


interest in vigorous prosecution of thecase. A second defect is that if pleabargaining becomes the norm of aparticular system, then undue pres-sure may be placed upon even inno-cent persons to plead guilty. Studieshave shown that, in some jurisdic-tions, the less the chance for convic-tion, the harder the bargaining may bebecause the prosecutor wants to get atleast some form of minimal confes-sion out of the accused.

A third disadvantage of plea bar-gaining is the possibility of the abusecalled overcharging — the processwhereby the prosecutor brings chargesagainst the accused more severe thanthe evidence warrants, with the hopethat this will strengthen his or herhand in subsequent negotiations withthe defense attorney.

Another flaw with the plea bargain-ing system is its very low level of visi-bility. Bargains between prosecutorand defense attorney are not made inopen court presided over by a neutraljurist and for all to observe. Instead,they are more likely made over a cupof coffee in a basement courthousecafeteria where the conscience of thetwo lawyers is the primary guide.

Finally, the system has the potentialto circumvent key procedural andconstitutional rules of evidence. Be-cause the prosecutor need not presentany evidence or witnesses in court, abluff may result in a conviction eventhough the case might not be able topass the muster of the due process

clause. The defense may be at a disad-vantage because the rules of discovery(the laws that allow the defense toknow in detail the evidence the prose-cution will present) in some stateslimit the defense counsel’s case prepa-ration to the period after the plea bargain has occurred. Thus the pleabargain may deprive the accused ofbasic constitutional rights.

The Adversarial Process

The adversarial model is based on theassumption that every case or contro-versy has two sides to it: In criminalcases the government claims a defen-dant is guilty while the defendant con-tends innocence; in civil cases theplaintiff asserts that the person he orshe is suing has caused some injurywhile the respondent denies responsi-bility. In the courtroom each partyprovides his or her side of the story ashe or she sees it. The theory (or hope)underlying this model is that the truthwill emerge if each party is given un-bridled opportunity to present the fullpanoply of evidence, facts, and argu-ments before a neutral and attentivejudge (and jury).

The lawyers representing each sideare the major players in this court-room drama. The judge acts more as apassive, disinterested referee whoseprimary role is to keep both sideswithin the accepted rules of legal pro-cedure and courtroom decorum. Thejudge eventually determines whichside has won in accordance with the


rules of evidence, but only after bothsides have had a full opportunity topresent their case.

PROCEDURES DURING ACRIMINAL TRIAL

Assuming that no plea bargainhas been struck and the ac-cused maintains his or her in-

nocence, a formal trial will take place.This is a right guaranteed by the SixthAmendment to all Americans chargedwith federal crimes and a right guaran-teed by the various state constitutions— and by the Fourteenth Amendment— to all persons charged with state offenses. The accused is providedmany constitutional and statutoryrights during the trial. The followingare the primary rights that are bindingon both the federal and state courts.

Basic Rights Guaranteed Duringthe Trial Process

The Sixth Amendment says, “In allcriminal prosecutions, the accusedshall enjoy the right to a speedy andpublic trial.” The Founders empha-sized the word speedy so that an ac-cused would not languish in prison fora long time prior to the trial or havethe determination of his or her fateput off for an unduly long period oftime. But how soon is speedy? Al-though this word has been defined invarious ways by the Supreme Court,Congress gave new meaning to theterm when it passed the Speedy TrialAct of 1974. The act mandated time

limits, ultimately reaching 100 days,within which criminal charges musteither be brought to trial or dismissed.Most states have similar measures onthe statute books, although the precisetime period varies from one jurisdic-tion to another. By “public trial” theFounders meant to discourage the no-tion of secret proceedings whereby anaccused could be tried without publicknowledge and whisked off to someunknown detention camp.

The Sixth Amendment also guar-antees Americans the right to an im-partial jury. At the least this has meantthat the prospective jurors must not beprejudiced one way or the other beforethe trial begins. For example, a poten-tial juror may not be a friend or rela-tive of the prosecutor or the crime victim; nor may someone serve whobelieves that anyone of the defendant’srace or ethnic ancestry is “probably thecriminal type.” What the concept of animpartial jury of one’s peers has cometo mean in practice is that jurors are tobe selected randomly from the voterregistration lists — supplemented inan increasing number of jurisdictionsby lists based on automobile registra-tions, driver’s licenses, telephonebooks, welfare rolls, and so on. Al-though this system does not provide a perfect cross-section of the commu-nity, because not all persons are regis-tered to vote, the Supreme Court hassaid that this method is good enough.The High Court has also ruled that no class of persons (such as African


Americans or women) may be system-atically excluded from jury service.

Besides being guaranteed the rightto be tried in the same locale where thecrime was committed and to be in-formed of the charges, defendantshave the right to be confronted withthe witnesses against them. They havethe right to know who their accusersare and what they are charging so thata proper defense may be formulated.The accused is also guaranteed the opportunity “to have the Assistance ofCounsel for his defense.” Prior to the1960s this meant that one had thisright (at the state level) only for serious crimes and only if one couldpay for an attorney. However, becauseof a series of Supreme Court deci-sions, the law of the land guaranteesone an attorney if tried for any crimethat may result in a prison term, andthe government must pay for the legaldefense for an indigent defendant.This is the rule at both the nationaland state levels.

The Fifth Amendment to the U.S.Constitution declares that no personshall “be subject for the same offenceto be twice put in jeopardy of life andlimb.” This is the double jeopardyclause and means that no one may betried twice for the same crime by anystate government or by the federalgovernment. It does not mean, however,that a person may not be tried twicefor the same action if that action hasviolated both national and state laws.For example, someone who robs a fed-

erally chartered bank in New Jerseyruns afoul of both federal and statelaw. That person could be legally triedand acquitted for that offense in a NewJersey court and subsequently be triedfor that same action in federal court.

Another important right guaran-teed to the accused at both the stateand federal levels is not to “be com-pelled in any criminal case to be a wit-ness against himself.” This has been interpreted to mean that the fact thatsomeone elects not to testify on his orher own behalf in court may not beused against the person by judge andjury. This guarantee serves to reinforcethe principle that under the U.S. judi-cial system the burden of proof is onthe state; the accused is presumed in-nocent until the government provesotherwise beyond a reasonable doubt.

Finally, the Supreme Court has in-terpreted the guarantee of due processof law to mean that evidence procuredin an illegal search and seizure may notbe used against the accused at trial.The source of this so-called exclusion-ary rule is the Fourth Amendment tothe U.S. Constitution; the SupremeCourt has made its strictures bindingon the states as well. The Court’s pur-pose was to eliminate any incentive thepolice might have to illegally obtainevidence against the accused.

Selection of Jurors

If the accused elects not to have abench trial — that is, not to be triedand sentenced by a judge alone — his


or her fate will be determined by ajury. At the federal level 12 personsmust render a unanimous verdict. Atthe state level such criteria apply onlyto the most serious offenses. In manystates a jury may consist of fewer than12 persons and render verdicts byother than unanimous decisions.

A group of potential jurors is sum-moned to appear in court. They arequestioned in open court about theirgeneral qualifications for jury servicein a process known as “voir dire”(from Old French, meaning “to say thetruth”). The prosecutor and the de-fense attorney ask general and specificquestions of the potential jurors. Arethey citizens of the state? Can theycomprehend the English language?Have they or anyone in their familyever been tried for a criminal offense?Have they read about or formed anyopinions about the case at hand?

In conducting the voir dire, the stateand the defense have two goals. Thefirst is to eliminate all members of thepanel who have an obvious reason whythey might not render an impartial de-cision in the case. Common examplesmight be someone who is excluded bylaw from serving on a jury, a juror whois a friend or relative of a participant inthe trial, and someone who openly ad-mits a strong bias in the case at hand.Objections to jurors in this category areknown as challenges for cause, and thenumber of such challenges is unlimit-ed. It is the judge who determineswhether these challenges are valid.

The second goal that the opposingattorneys have in questioning pros-pective jurors is to eliminate thosewho they believe would be unfavor-able to their side even though no overtreason is apparent for the potentialbias. Each side is allowed a number ofperemptory challenges — requests tothe court to exclude a prospectivejuror with no reason given. Most statescustomarily give the defense moreperemptory challenges than the prose-cution. At the federal level one to threechallenges per jury are usually permit-ted each side, depending on the natureof the offense; as many as 20 are al-lowed in capital cases. The use ofperemptory challenges is more of anart than a science and is usually basedon the hunch of the attorneys.

In the past attorneys were able toexclude potential jurors via theperemptory challenge for virtually anyreason whatsoever. However, in recentyears the Supreme Court has inter-preted the Fourteenth Amendment’sequal protection clause to restrict thisdiscretion by prohibiting prosecutorsfrom using their challenges to excludeAfrican Americans or women fromserving on a criminal jury.

The process of questioning andchallenging prospective jurors contin-ues until all those duly challenged forcause are eliminated, the peremptorychallenges are either used up orwaived, and a jury of 12 (six in somestates) has been created. In some statesalternate jurors are also chosen. They


attend the trial but participate in de-liberations only if one of the originaljurors is unable to continue in the pro-ceedings. Once the panel has been se-lected, they are sworn in by the judgeor the clerk of the court.

Opening Statements

After the formal trial begins, both theprosecution and the defense make anopening statement (although in nostate is the defense compelled to doso). Long and detailed statements aremore likely to be made in jury trialsthan in bench trials. The purpose ofopening statements is to providemembers of the jury — who lack familiarity with the law and with procedures of criminal investigation— with an outline of the major objec-tives of each side’s case, the evidencethat is to be presented, the witnessesthat are to be called, and what eachside seeks to prove. If the openingstatements are well presented, the ju-rors will find it easier to grasp themeaning and significance of the evidence and testimony. The usualprocedure is for the state to make itsopening statement first and for the de-fense to follow with a statement abouthow it will refute that case.

The Prosecution’s Case

After the opening statements the pros-ecutor presents the evidence amassedby the state against the accused. Evi-dence is generally of two types —physical evidence and the testimony of

witnesses. The physical evidence mayinclude things such as bullets, ballisticstests, fingerprints, handwriting sam-ples, blood and urine tests, and otherdocuments or items that serve as phys-ical aids. The defense may object to theadmission of any of these tangibleitems and will, if successful, have theitem excluded from consideration. Ifdefense challenges are unsuccessful,the physical evidence is labeled by oneof the courtroom personnel and be-comes part of the official record.

Most evidence at criminal trialstakes the form of testimony of wit-nesses. The format is a question-and-answer procedure whose purpose is toelicit very specific information in anorderly fashion. The goal is to presentonly evidence that is relevant to theimmediate case at hand and not togive confusing or irrelevant informa-tion or illegal evidence that might result in a mistrial (for example,evidence that the accused had a priorconviction for an identical offense).

After each witness the defense at-torney has the right to cross-examine.The goal of the defense will be to im-peach the testimony of the prosecu-tion witness — that is, to discredit it.The attorney may attempt to confuse,fluster, or anger the witness, causinghim or her to lose self-control andbegin providing confusing or conflict-ing testimony. A prosecution witness’testimony may also be impeached ifdefense witnesses who contradict theversion of events suggested by the state


are subsequently presented. Uponcompletion of the cross-examination,the prosecutor may conduct a redirectexamination, which serves to clarify orcorrect some telling point made dur-ing the cross-examination. After thestate has presented all its evidence andwitnesses, it rests its case.

The Case for the Defense

The presentation of the case for thedefense is similar in style and formatto that of the prosecution. Tangible ev-idence is less common in the defense’scase, and most of the evidence will bethat of witnesses who are prepared torebut or contradict the prosecution’sarguments. The witnesses are ques-tioned by the defense attorney in thesame style as those in the prosecutioncase. Each defense witness may in turnbe cross-examined by the district at-torney, and then a redirect examina-tion is in order.

The difference between the case forthe prosecution and the case for thedefense lies in their obligation beforethe law. The defense is not required bylaw to present any new or additionalevidence or any witnesses at all. Thedefense may consist merely of chal-lenging the credibility or the legality ofthe state’s evidence and witnesses. Thedefense is not obligated to prove theinnocence of the accused; it need showonly that the state’s case is not beyonda reasonable doubt. The defendantneed not even take the stand. (Howev-er, if he or she elects to do so, the ac-

cused faces the same risks of cross-examination as any other witness.)

After the defense has rested its case,the prosecution has the right topresent rebuttal evidence. In turn, thedefense may offer a rejoinder knownas a surrebuttal. After that, each sidedelivers closing arguments. Often-times this is one of the more dramaticepisodes in the trial because each sideseeks to sum up its case, condense itsstrongest arguments, and make onelast appeal to the jury. New evidencemay not be presented at this stage, andthe arguments of both sides tend toring with emotion and appeals to val-ues that transcend the immediate case.The prosecutor may talk about thecrime problem in general, about theneed for law and order, and about theneed not to let compassion for the ac-cused get in the way of empathy forthe crime victim. The defense attor-ney, on the other hand, may remindthe jurors “how we have all made mis-takes in this life” or argue that in a free,democratic society any doubt theyhave should be resolved in favor of theaccused. The prosecution probablyavoids emotionalism more than thedefense attorney, however, becausemany jury verdicts have been reversedon appeal after the district attorney in-jected prejudicial statements into theclosing statements.

Role of the Judge During the Trial

The judge’s role in the trial, althoughvery important, is a relatively passive



Prosecutors and police display a seizure of more than $45 million worth of heroin andcocaine. Illegal drug traffic belongs under either one of two categories of crime:organized crime and consensual crime, also known as victimless crime, because boththe perpetrator and the client desire the forbidden activity.

Witnesses and physical evidence form theprincipal elements of the prosecution’s case inmost trials. Left: Tampa Police Departmentinvestigators take fingerprint samples in anattempt to trace an accused terrorist. Above:An expert witness points to a chart of theparking lot where an alleged crime took place.

one. He or she does not present anyevidence or take an active part in theexamination of the witnesses. Thejudge is called upon to rule on themany motions of the prosecutor andof the defense attorney regarding thetypes of evidence that may be present-ed and the kinds of questions thatmay be asked of the witnesses. Insome jurisdictions the judge is per-mitted to ask substantive questions ofthe witnesses and also to comment tothe jury about the credibility of theevidence that is presented; in otherstates the judge is constrained fromsuch activity. Still, the American legaltradition has room for a variety ofjudicial styles that depend on the per-sonality, training, and wisdom of indi-vidual judges.

First and foremost, the judge is ex-pected to play the part of a disinterest-ed party whose primary job is to see toit that both sides are allowed to present their cases as fully as possiblewithin the confines of the law. Ifjudges depart from the appearance orpractice of being fair and neutral par-ties, they run counter to fundamentaltenets of American jurisprudence andrisk having their decisions overturnedby an appellate court.

Although judges do for the mostpart play such a role, the backgroundsand values of the jurists also affecttheir decisions in the close calls —when they are called upon to rule on a motion for which the arguments

are about equally strong or on a point of law that is open to a variety of interpretations.

Role of the Jury During the Trial

The jurors’ role during the trial is pas-sive. Their job is to listen attentively tothe cases presented by the opposingattorneys and then come to a decisionbased solely on the evidence that is setforth. They are ordinarily not permit-ted to ask questions either of the wit-nesses or of the judge, nor are they allowed to take notes of the proceed-ings. This is not because of constitu-tional or statutory prohibitions butprimarily because it has been the tra-ditional practice of courts in America.

In recent years, however, manyjudges have allowed jurors to becomemore involved in the judicial arena.Chicago’s Chief U.S. District CourtJudge John F. Grady has for over adecade permitted jurors in his court-room to take notes. At least four U.S.appellate courts have given tacit ap-proval to the practice of juror partici-pation in questioning witnesses, aslong as jurors are not permitted toblurt out queries in the midst of trialand attorneys are given a chance toobject to specific questions beforethey are posed to witnesses. In somestates a few trial judges have allowedjurors to take fairly active roles in thetrial. Still, at both state and federal lev-els the role of the jury remains basi-cally passive.


Instructions to the Jury

Although the jury’s job is to weigh andassess the facts of the case, the judgemust instruct the jurors about themeaning of the law and how the law isto be applied. Because many cases areoverturned on appeal as a result offaulty jury instructions, judges tend totake great care that the wording betechnically and legally correct.

All jury instructions must havesome basic elements. One is to definefor the jurors the crime with whichthe accused is charged. This may in-volve giving the jurors a variety of op-tions about what kind of verdict tobring. For example, if one person hastaken the life of another, the state maybe trying the accused for first-degreemurder. Nevertheless, the judge maybe obliged to acquaint the jury withthe legal definition of second-degreemurder or manslaughter if it shoulddetermine that the defendant was thekiller but did not act with maliceaforethought.

The judge must also remind thejury that the burden of proof is on thestate and that the accused is presumedto be innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt ofthe accused, it must bring in a notguilty verdict.

Finally, the judge usually acquaintsthe jurors with a variety of proceduralmatters: how to contact the judge ifthey have questions, the order inwhich they must consider the charges

if there are more than one, who mustsign the official documents that ex-press the verdict of the jury. After the instructions are read to the jury(and the attorneys for each side havebeen given an opportunity to offerobjections), the jurors retreat into adeliberation room to decide the fate of the accused.

The Jury’s Decision

The jury deliberates in complete privacy; no outsiders observe or par-ticipate in its debate. During their deliberation jurors may request theclarification of legal questions fromthe judge, and they may look at itemsof evidence or selected segments of thecase transcript, but they may consultnothing else — no law dictionaries, nolegal writings, no opinions from ex-perts. When it has reached a decisionby a vote of its members, the jury re-turns to the courtroom to announceits verdict. If it has not reached a deci-sion by nightfall, the jurors are senthome with firm instructions neitherto discuss the case with others norread about the case in the newspapers.In very important or notorious cases,the jury may be sequestered by thejudge, which means that its memberswill spend the night in a local hotelaway from the public eye.

If the jury becomes deadlockedand cannot reach a verdict, it may re-port that fact to the judge. In such anevent the judge may insist that thejury continue its effort to reach a ver-



Defendants in thephotos to the left andabove are shownawaiting the jury’sverdict and listening to the judge’sannouncement of theverdict. Once the verdictis reached, the judgehas several weeks todetermine the penalty,based on the principlethat the punishmentshould fit the crime.Bottom left, a prisoneris led back to his cell.

dict. Or, if the judge is convinced thatthe jury is in fact hopelessly dead-locked, he or she may dismiss the juryand call for a new trial.

Research studies indicate that mostjuries dealing with criminal casesmake their decisions fairly quickly. Al-most all juries take a vote soon afterthey retire to their chambers in orderto see how divided, or united, they are.In 30 percent of the cases it takes onlyone vote to reach a unanimous deci-sion. In 90 percent of the remainder,the majority on the first ballot eventu-ally wins out. Hung juries — those inwhich no verdict can be reached —tend to occur only when a large mi-nority existed on the first ballot.

Scholars have also learned that ju-ries often reach the same verdict thatthe judge would have, had he or shebeen solely responsible for the deci-sion. One large jury study asked judgesto state how they would have decidedjury cases over which they presided.The judge and jury agreed in 81 per-cent of the criminal cases (about thesame as in civil cases). In 19 percent ofthe criminal cases the judge and jurydisagreed, with the judge showing amarked tendency to convict where thejuries had acquitted.

When the members of the jury dofinally reach a decision, they return tothe courtroom and their verdict is an-nounced in open court, often by thejury foreman. At this time either theprosecutor or the defense attorneyoften asks that the jury be polled —

that is, that each juror be asked indi-vidually if the general verdict actuallyreflects his or her own opinion. Thepurpose is to determine whether eachjuror supports the overall verdict orwhether he or she is just caving in togroup pressure. If the polling proce-dure reveals that the jury is indeed notof one mind, it may be sent back to thejury room to continue deliberations;in some jurisdictions a mistrial may be declared. If a mistrial is declared,the case may be tried again before another jury. There is no double jeop-ardy because the original jury did notagree on a verdict. If the jury’s verdictis not guilty, the defendant is dis-charged on the spot and is free to leavethe courtroom.

PROCEDURES AFTER ACRIMINAL TRIAL

At the close of the criminal trial,generally two stages remain for the defendant if he or she

has been found guilty: sentencing andan appeal.

Sentencing

Sentencing is the court’s formal pro-nouncement of judgment upon thedefendant at which time the punish-ment or penalty is set forth.

At the federal level and in moststates, sentences are imposed by thejudge only. However, in several statesthe defendant may elect to be sen-tenced by either a judge or a jury, andin capital cases states generally require


that no death sentence shall be im-posed unless it is the determination of12 unanimous jurors. In some statesafter a jury finds someone guilty, thejury deliberates a second time to de-termine the sentence. In several statesa new jury is empaneled expressly forsentencing. At this time the rules ofevidence are more relaxed, and thejury may be permitted to hear evi-dence that was excluded during the ac-tual trial (for example, the previouscriminal record of the accused).

After the judge pronounces thesentence, several weeks customarilyelapse between the time the defendantis found guilty and the time when thepenalty is imposed. This interval per-mits the judge to hear and considerany posttrial motions that the defenseattorney might make (such as a mo-tion for a new trial) and to allow aprobation officer to conduct a presen-tence investigation. The probation officer is a professional with a back-ground in criminology, psychology,or social work, who makes a recom-mendation to the judge about thelength of the sentence to be imposed.The probation officer customarily examines factors such as the back-ground of the criminal, the serious-ness of the crime committed, and thelikelihood that the criminal will con-tinue to engage in illegal activity.Judges are not required to follow theprobation officer’s recommendation,but it is still a major factor in thejudge’s calculus as to what the sen-

tence shall be. Judges are presentedwith a variety of alternatives and arange of sentences when it comes topunishment for the criminal. Many ofthese alternatives involve the conceptof rehabilitation and call for the assis-tance of professionals in the fields ofcriminology and social science.

The lightest punishment that ajudge can hand down is that of proba-tion. This is often the penalty if thecrime is regarded as minor or if thejudge believes that the guilty person isnot likely to engage in additionalcriminal activity. If a probated sen-tence is handed down, the criminalmay not spend any time in prison aslong as the conditions of the proba-tion are maintained. Such conditionsmight include staying away from con-victed criminals, not committingother crimes, or with increasing fre-quency, performing some type ofcommunity service. If a criminalserves out his or her probation with-out incident, the criminal record isusually wiped clean and in the eyes ofthe law it is as if no crime had everbeen committed.

If the judge is not disposed towardprobation and feels that jail time is inorder, he or she must impose a prisonsentence that is within a range pre-scribed by law. The reason for a rangeof years instead of an automatically as-signed number is that the law recog-nizes that not all crimes and criminalsare alike and that in principle the pun-ishment should fit the crime.


In an effort to eliminate gross disparities in sentencing, the federalgovernment and many states have at-tempted to develop sets of preciseguidelines to create greater consisten-cy among judges. At the national levelthis effort was manifested by the en-actment of the Sentencing Reform Actof 1987, which established guidelinesto structure the sentencing process.

Congress provided that judges maydepart from the guidelines only if theyfind an aggravating or mitigating cir-cumstance that the commission didnot adequately consider. Although thecongressional guidelines do not speci-fy the kinds of factors that could con-stitute grounds for departure from thesentencing guidelines, Congress didstate that such grounds could not in-clude race, gender, national origin,creed, religion, socioeconomic status,drug dependence, or alcohol abuse.

The states, too, have a variety ofprograms for avoiding vast disparitiesin judges’ sentences. By 1995, 22 stateshad created commissions to establishsentencing guidelines for their judges,and as of late 1997 such guidelineswere in effect in 17 states. Likewise, al-most all of the states have now enact-ed mandatory sentencing laws that require an automatic, specific sentenceupon conviction of certain crimes —particularly violent crimes, crimes inwhich a gun was used, or crimes per-petrated by habitual offenders.

Despite the enormous impact thatjudges have on the sentence, they do

not necessarily have the final say onthe matter. Whenever a prison term isset by the judge, it is still subject to theparole laws of the federal governmentand of the states. Thus parole boards(and sometimes the president andgovernors who may grant pardons orcommute sentences) have the final sayabout how long an inmate actuallystays in prison.

An Appeal

At both the state and federal levelseveryone has the right to at least oneappeal upon conviction of a felony,but in reality few criminals avail them-selves of this privilege. An appeal isbased on the contention that an errorof law was made during the trialprocess. Such an error must be re-versible as opposed to harmless. Anerror is considered harmless if its occurrence had no effect on the out-come of the trial. A reversible error,however, is a serious one that mighthave affected the verdict of the judgeor jury. For example, a successful appeal might be based on the argu-ment that evidence was improperlyadmitted at trial, that the judge’s instructions to the jury were flawed,or that a guilty plea was not voluntar-ily made. However, appeals must bebased on questions of procedure andlegal interpretations, not on factualdeterminations of the defendant’sguilt or innocence as such. Further-more, under most circumstances onecannot appeal the length of one’s sen-


tence in the United States (as long as itwas in the range prescribed by law).

Criminal defendants do have somedegree of success on appeal about 20percent of the time, but this does notmean that the defendant goes free.The usual practice is for the appellatecourt to remand the case (send it backdown) to the lower court for a newtrial. At that point the prosecutionmust determine whether the proce-dural errors in the original trial can beovercome in a second trial andwhether it is worth the time and effortto do so. A second trial is not consid-ered to be double jeopardy, since thedefendant has chosen to appeal theoriginal conviction.

The media and others concernedwith the law often call attention to ap-pellate courts that turn loose seeming-ly guilty criminals and to convictions

that are reversed on technicalities.Surely this does happen, and onemight argue that this is inevitable in a democratic country whose legal system is based on fair play and thepresumption of the innocence of the accused. However, about 90 percent of all defendants plead guilty, and this plea virtually excludes the possi-bility of an appeal. Of the remaininggroup, two-thirds are found guilty attrial, and only a small percentage ofthese appeal. Of those who do appeal,only about 20 percent have any measurable degree of success. Ofthose whose convictions are reversed,many are found guilty at a subsequenttrial. Thus the number of personsconvicted of crimes who are subse-quently freed because of reversiblecourt errors is a small fraction of1 percent. �


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