Pretrial Process Essay Outline

Trial Process and Procedures

INTRODUCTION

The modern practice of law is a culmination of rituals that have been in existence since the times immemorial and has evolved through the years to incorporate other rituals from foreign lands. Trial procedures are uniform all over the land. There are several types of trials, among them criminal trials and the civil ones. The events interchange from the beginning of the process till the sentence has been passed. Whenever two parties cannot settle their dispute out of court, a trial is inevitable. After being arrested by the police, individuals are arraigned and tried in court to be given a chance for bail. After the bail hearing, an individual can be set free or remanded until the day the court decides to hear their case. Normally, a person is retained in jail if the court has a reason to believe that the individual might not show up for the next hearing. For a person to be granted bail, (s)he must also guarantee that (s)he will not commit another crime, either a felony or a misdemeanor, while on bail. Terms and conditions are set such as the depositing of passport to the court; the accused should also maintain a reliable contact in the form of informing the court of one’s address. The accused might also be required to deposit some surety, which can be in the form of cash, which deprives the individual of the chance to flee from the country. However, there are factors that the judge has to consider. It may take considerable effort for an individual to be granted bail if (s)he is facing an outstanding warrant, has a problem which involves immigration or already has a criminal score (Myers 301).

Strategies that are normally used by convicts in order to show that they are not going to escape the trial includes hiring a lawyer showing and giving evidence to the court that one has enough attachments to the community (s)he is currently residing in. The evidence might include documents such as proof of ownership of property within the state, as well as such witnesses as your family and friends. At this level, the lawyer is the person doing most of the talking. Body language plays a great role during the bail hearing, as one should look reliable. It may not augur well to the judge if one looks sleep-deprived or shabby (Bergman 245). During a bail hearing, the case is not heard in detail but the lawyer might argue the case by pointing out weaknesses that the prosecution team has failed to notice. Such detailed consideration is aimed at reducing the amount paid in bail. In some states, the court may call for the services of an external agency whose main task is to establish the individual’s connection with the community in which (s)he resides in. This helps the judge to pass the sentence. The agency will communicate with the arrested individual and ask them to provide information about their friends and family including their contact numbers. Most states do not provide bail for persons classified as juveniles. The major reason for this is that it is hard for the parents to ransom their children.

After a bail hearing, the individual might be granted bail or be remanded. A court date is fixed and the trial is ready to start. In a criminal proceeding, the accused could also request for a speedy trial, which is guaranteed by the United States constitution and gives the accused certain guarantees concerning their rights an freedoms, which the accused retains even being apprehended. The length of time that the accused can be imprisoned before a fair trial is conducted, varies from state to state, and can be described by statute or can also be defined by the law courts using the substantiation theory of the sixth’s amendment. A speedy trial is normally handed down to the accused if much time has passed since the crime took place. The accused may undergo a bench trial, whereby a judge is the person who is responsible for hearing and deciding what type of punishment should be awarded. A bench trial can be chosen by a defendant if they have a strong feeling that they will not get a fair hearing if his/her trial is subjected to a jury trial. In most countries, a bench trial is the most common practice. A jury trial is a trial where the case is decided by a group of people who are chosen randomly. Deliberations are made by people of the jury and they vote in order to decide the fate of the accused. A jury consists of 12 people, and if 75% of them within the jury agree, then a verdict can said to have been reached.

PRE-TRIAL PROCESS/PRELIMINARY HEARING

There are some instances where a pre trial is necessary, which is set for the purposes of determining the evidence of facts regarding the case and also any other information that could assist either party. The pre trial case establishes the preceding court dates that will be set by the judge. The lawyer or attorney may also want to file a motion of suppression, which prohibits to disclose the facts that may hinder the due process of fair trial from the jury. There are also cases where there may be persons in the courtroom who may not understand the language being used during the trial, hence, it is important that an interpreter is sought. The purpose of a pre trial is to try to eliminate the conflict between the prosecution and the defense in a manner that will be amicable by both. The pre trial process should not, however, try to stop the defendant from getting justice through not obtaining a trial.

THE TRIAL PROCESS

Once a court date has been set by the judge, the accused takes time to build up his case as well as the prosecutions. If it is a jury trial, the jury by this time will have been summoned for jury duty. The process of orientation takes place as the jurors are also assigned a group/panel number that assigns them to groups of six to eighteen jurors (Berman 89).

Before the trial begins, the judge sends for the jurors through the deputy sheriff to be questioned and be evaluated on their ability to be impartial to the case. This is also done by the attorney who in this case may be looking for a juror who may be sympathetic towards their client. A final number of about twelve jurors are chosen, with two extra people. Two of them will not deliberate on the case but will take the place of any juror who may miss to appear during the court trial (Cole 502).

Opening arguments or statements are made first by the attorney representing the plaintiff (the person who is responsible for filing the case), to the jury, and then by the defense attorney. This sets out the trial environment and offers certain rationale for both parties. The opening statement is to set out the facts to the jurors. The jurors are not supposed to use any other information apart from the one being presented in court (Champion 273). Opening statements are limited to evidence and not to the information that is known outside court. Each attorney illustrates the opening statement in a manner that will favor his/her clients. Statements are vivid and not meant to be argumentative (Cederbaums 69).

This is followed by the testimony from the plaintiff (civil case) or prosecution (criminal case). The prosecution side is given the chance to present their case and witnesses. The witnesses are also analyzed by other attorneys who are participating in the case (Fitzmaurice 208). The plaintiff/ prosecution may also call certain specialists, e.g. ballistics experts and others in order to strengthen their evidence against the accused. This gives them the chance to present their justification to the court. The defense lawyer is given the chance to discredit the witness statements through cross-examination. There have been instances where cases were thrown or dismissed because the eyewitnesses were considered unreliable and contradicting themselves. After the plaintiff has presented their case, the defense side is also given the chance to present their witnesses and experts who are also cross examined by the plaintiff attorney. It is at this stage that evidence is presented to the court and the jurors are given the chance to see the evidence physically which can be presented through the photographs and other physical forms of evidence. Witnesses and experts can also be recalled at the judge’s discretion to be interrogated further in case something has not been clarified (Fradella 507).

CLOSING ARGUMENTS

After expert witnesses and evidence have been produced, the attorneys are given an opportunity to make closing arguments. This is the final opportunity to address the jury and make them sympathetic towards the accused. At this point, the plaintiff (civil case) or prosecutor (criminal case) goes first to offer their arguments through a thorough analysis of evidence and witnesses presented during the trial process. It is followed by the defense attorney who follows the same procedure and tries to sway the jury to make a favorable verdict. The prosecution/plaintiff is given the final opportunity to punch holes in the closing arguments of the defense (Levinkind 93).

JURY DELIBERATION

Deliberations are made by the jury after the judge has dismissed them with clear instructions on how to evaluate the case. Normally, instructions include a warning on how to avoid bias during the deliberations. These deliberations may take hours to even days based on the complexities involved in the case. A verdict is reached once a unanimous decision i.e. all twelve jurors agree (Neubauer 82). However, there have been cases in the past where verdicts were reached without a unanimous decision. In the U.S., only Oregon and Louisiana have laws that permit verdict decisions that are not unanimous. In the situation where the jury cannot make a unanimous decision, a mistrial is acknowledged. The jury is called as a hung jury in such case. A case involving a new panel of jury can be retried. In any deliberation, a foreperson is first selected. This person is in charge of leading the deliberations and chairing any discussion towards a speedy and successful conclusion. The first phase of deliberations is done first by the foreperson trying to collect the views of the jurors. This can be done by a show of lifting of hands in order to show consent or disapproval. The consensus is then sought on how a verdict can be reached. At this stage, the jury might have different opinions concerning the case, which means that the latter has to be brought forward for review. Evidence could also be presented again to the jury (Wyness 78). All these discussions and deliberations will culminate in a verdict that is reasonable for the jury. If the case is civil, another set of jury known as the petit jury will determine any damages and liability that will be compensated by the party responsible (Schmalleger 23).

THE VERDICT AND ITS REPERCUSSIONS

A verdict is reached after the jury comes up with a unanimous decision and this verdict is delivered to the judge though the deputy sheriff. The verdict is announced in court in the presence of both the defense and plaintiff, and also their friends and relatives (Xavier 105). There are instances where the judge does not agree with the verdict reached by the jury and it is at this point that he can exercise his powers to decide the sentence handed down. The judge does this with evidence of justifications.

Any verdict may be followed by implications. Some implications could favor the defense, plaintiff or both. If either party is not happy with a verdict given, they may opt to pursue the matter through appealing in a higher court of law. The court of appeal is powerful and is given the task to review earlier decisions made by lower courts. Appeal courts are powerful as their decisions set a precedence for future policies and decisions that will be made by lower courts. If the defense side is found to be guilty, they are liable for punishment under the laws of the land. Punishment varies from prison incarcerations payment in the form of monetary means (Giglio343).

CONCLUSION

The whole process form the pretrial to the verdict delivery is done in the view of the whole public in order to establish credibility to all the sides. This process, however, varies from country to country. For example, in bench trial the mode is normally followed under the British law court systems. The verdict reached is supposed to be fair and punishment awarded should be equal to the crime committed.

Works Cited

Bergman, Paul. The Criminal Law Handbook: Know Your Rights, Survive the System. California, CA: Nolo, 2008.

Berman, Sara. Represent Yourself in Court: How to Prepare & Try a Winning Case. California, CA: Nolo, 2008.

Cederbaums, Juris. Criminal Procedure Sourcebook Michigan, MI: Practicing Law Institute, 1970.

Champion, Dean. Criminal Courts: Structure, Process, and Issues. London: Prentice-Hall, 2007.

Cole, George. The American System of Criminal Justice. New York: Cengage Learning, 2006.

Fitzmaurice, Gerald. Law and Procedures of the International Court of Justice. London: Cambridge University Press, 1986.

Fradella, Henry. Criminal Procedure for the Criminal Justice Professional. New York: Cengage Learning, 2008.

Giglio, Ernest D. “Free Press-Fair Trial in Britain and America.” Journal of Criminal Justice, 10.5 (2002): 341-358.

Levinkind, Susan. Legal Research: How to Find & Understand the Law. London: Oxford Publishers, 2007.

Myers, Martha A. “Judges, Juries, and the Decision to the Convict.” Journal of Criminal Justice 9.4 (1981): 289-303.

Neubauer, David. America’s Courts and the Criminal Justice System London: Wadsworth Publishers, 1996.

Schmalleger, Frank. Criminal Justice Today: An Introductory Text for the Twenty-First Century. London: Prentice Hall, 2007.

Wyness, Robert. Civil Procedure of the Trial Court in Historical Perspective. New York: The Law Book Exchange, Ltd., 2005.

Xavier, Busch. Law and Tactics in Jury Trials: The Art of Jury Persuasion, Tested Court Procedures. New York: Bobbs-Merrill Co., 1998.

The topic that I chose to describe is the criminal justice process. The criminal justice process is described as a process that involves a series of steps beginning with the investigation of the crime and the arrest of the suspect. The next step following the investigation is the pretrial activities, which include the first appearance, a preliminary hearing, information or indictment, and arraignment. Following the pretrial activities, is adjudication, this is where there is a trial by jury. A trial is heard and settled by this judicial procedure. Following adjudication the sentence is given. Lastly, the corrections stage begins.

The first step, investigation and arrest, is very important. Since there is already a crime that has been commented, getting as much evidence at the scene of the crime is critical. At the crime scene is also where the brainstorming begins for the police officers and investigators. An arrest warrant can be granted by a judge and in that warrant it provides, “the legal basis for an apprehension by the police.” (Schmalleger, 2011, p.18) “A warrant is, a writ issued by a judicial officer to perform a specified act and affording the officer protection from damages if he or she performs it.” (Schmalleger, 2011, p.18) Arrest is a serious step in the criminal justice process because no police officer wants to arrest the wrong individual. During the arrest and before the questioning the defendants are advised of their constitutional rights.

These rights are known as Miranda Rights. Miranda Rights are a constitutional requirement, it protects the arrestee, and it also protects law enforcement and the prosecution from throwing out any evidence in the trial. After the arrest, suspects are placed in booking. Booking is described as, “A law enforcement or correctional administrative process officially recording an entry into detention after arrest and identifying the person, the place, the time, the reason for the arrest, and the arresting authority.” In booking suspects are usually advised of their rights once again and are asked to sign a form which acknowledges that the suspect has been advised of his or her rights and understands them.

The second step of the criminal justice process is pretrial activities. This is when the suspect makes his or her first appearance, in front of a judicial officer. The suspect will be aware of his or her charges, give rights again, and possible bail. Bail is, “the money or property pledged to the court or actually deposited with the court to affect the release of a person from legal custody.” (Schmalleger, 2011, p.18) Those who are not released on bail have to stay in jail and await the next stage of the process. If a defendant does not have a lawyer, a lawyer will be appointed to him or her, but the defendant has to show financial hardship. After the suspect has been either released on bond or not the defendant has to face a preliminary hearing. During this hearing, there has to be appropriate evidence to continue the criminal justice process. Probable cause comes into effect when, “(1) a crime is committed, and (2) the defendant committed it.” (Schmalleger, 2011, p.19)

The preliminary hearing is extremely important for the defense because it, “serves as a discovery function.” (Schmalleger, 2011, p.19) Depending upon the outcome of the preliminary hearing the prosecutor may seek to continue a case against the defendant by filing, “a formal written accusation submitted to a court by a prosecutor, alleging that a specified person committed a specified offense” (Schmalleger, 2011, p.19) Other states require an indictment , which is returned by a grand jury before prosecution can go forward. Information and indictment differ because the formal, written accusation is submitted to the court by a grand jury, in an indictment. The arraignment is, “the first appearance of the defendant before the court that has the authority to conduct a trial.” (Schmalleger, 2011, p.19) During the defendants arraignment they are again explained their rights and are asked to enter a plea. Usually a plea is guilty, not guilt, or no contest. If a judge feels if the defendant does not understand why he or she is being accused, made under coercion, or do not say anything then the judge will grant the defendant a not guilty plea. Each criminal defendant has a right to a trial by jury under the U.S. Constitution’s 6th Amendment.

Amongst most jurisdictions numerous criminal cases never come to trial. If the offense is less serious offense then the defendant can go before a judge, this is called a bench trial. If a jury cannot decide the facts of the case and the law the judge is said to be deadlocked. The judge rules it being a mistrial and the defendant may be tried again with a new jury. After the person has been convicted then it is up to a judge to make a ruling on his or her sentencing. Sentencing, which is the 4th step, can be a combination of the following punishments, supervised probation in the community, a fine, or a prison term. To help the judge make an appropriate judgment he or she will request the probation or parole officer, assigned to the defendant, to put together a presentence report. A presentence report can consist of the following: “information on the defendant’s family and business situation, emotional state, social background, and criminal history.” (Schmalleger, 2011, p.21)

Once an offender is found guilty of more than one charge he or she may be ordered to serve one sentence once another is completed, this is called consecutive sentence. If the judge orders concurrent sentencing, all of the time of the sentence will be all ran at the same time. If an appeal is requested after the sentencing has been ordered the process is very complex. After the sentencing has been ordered to the offender the correctional stage begins. Not all offenders end up in prison. Some may be ordered to community service as time on probation. If an offender fails to appear a visit with the probation officer or meet the requirements set by the judge, then probation can be revoked and the remainder of the time will be served in prison.

Only when a criminal has been through the criminal justice process and served out their punishment, the system’s process is complete and justice has been served. This also gives the ex- offender a second chance.

References

Schmalleger, F. 2011. Criminal justice today: An introductory text for the 21st century. Eleventh Edition, pp. 18,19, and 21

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