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Criminal Trials: Common Procedures

Most trials follow a uniform set of procedures. The many rituals associated with modern trials have developed over centuries. America’s common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. In summary form, assuming that the trial is carried out to completion, those procedures are as follows:


The defense decides whether it wants the case tried by a judge or a jury. In Florida state proceedings, most juries (except in death-penalty cases) are comprised of six members, plus alternates if necessary. The defense can insist on trial by jury under most circumstances.


If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called “voir dire". In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own.


The defense and prosecution request the court in advance of trial to admit or exclude certain evidence. These requests are called motions “in limine."


The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. In some cases, the defense attorney reserves opening argument until the beginning of the defense case.


The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.


The defense may cross-examine the prosecution witnesses.


The prosecution may reexamine its witnesses.


The prosecution finishes presenting its case.


The defense presents its main case through direct examination of defense witnesses. It is never required for the Defendant to present witnesses, or to testify.


The prosecutor cross-examines the defense witnesses.


The defense reexamines the defense witnesses.


The defense finishes presenting its case.


The prosecutor may offer evidence to refute the defense case.


The prosecution and defense get together with the judge and craft a final set of instructions tht the judge will give the jury. Many instructions are provided by Standard Jury Instructions.


The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict.


The defense makes its closing argument, summarizing the evidence as the defense sees it, and explaining why the jury should render a not guilty verdict, or at least a guilty verdict on a lesser charge.


The prosecution has the last opportunity to address the jury to rebut the defense argument.


The judge instructs the jury about what law to apply to the case and how to carry out its duties (Some judges “pre-instruct” juries, reciting instructions before closing argument or even at the outset of trial.).


The jury (if it is a jury trial) deliberates and tries to reach a verdict. The verdict must be unanimous.


If the jury produces a guilty verdict, the defense may make post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.


Assuming a conviction (a verdict of “guilty”), the judge either sentences the defendant on the spot, or sets sentencing for another day.


In Florida state courts, the judge will consider sentences recommended by the Criminal Punishment Code. In federal courts, the judge will consider a range of sentences calculated under the Sentencing Guidelines. The judge may find reasons to depart from the recommended sentences.

Common Defenses to Criminal Charges

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. A defendant may mount a defense by remaining silent, not presenting any witnesses and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many other types of defenses, and you may need to consult with an attorney to determine the full range of available defenses.


All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant’s guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can’t convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant’s guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.


The prosecutor must convince the judge or jury hearing the case that the defendant is guilty “beyond a reasonable doubt". This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence — anything over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant’s most common defense is often to argue that there is reasonable doubt — that is, that the prosecutor hasn’t done a sufficient job of proving that the defendant is guilty.
Sometimes, however, a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.


Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person’s threatening actions. The core issues in most self-defense cases are:
Who was the aggressor?
Was the defendant’s belief that self-defense was necessary a reasonable one?
If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable — if she does, she may be guilty of a crime.

Florida now has special rules concerning the use of force when you are confronted by an aggressor. You should confer with an attorney to discuss the implications and significance of these rules and how they relate to your case.


The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

Despite popular perceptions to the contrary, defendants rarely enter pleas of “not guilty by reason of insanity". And when they do, judges and jurors rarely uphold it.
Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the “McNaghten rule,” which defines insanity as “the inability to distinguish right from wrong". Another common test is known as “irresistible impulse”: a person may know that an act is wrong, but because of mental illness he cannot control his actions (he’s described as acting out of an “irresistible impulse”).
Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forego rather than rely on the insanity defense.
The Influence of Drugs or Alcohol

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires “specific intent” (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn’t entirely excuse the defendant’s actions. In this situation, the defendant will usually be convicted of another crime that doesn’t require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn’t require specific intent. Florida no longer recognizes the defense of voluntary intoxication, and the Criminal Punishment Code specifically rejects the notion that an intoxicated defendant should receive a reduced sentence.


An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie’s alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and that it in no way suggests falsity.


Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime. Florida recognizes two different kinds of entrapment defense: subjective and objective. The defenses are highly case- and fact-specific.


When People Who Help Other People Commit a Crime Can Be Charged
Often people participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.


As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.
To prove that a defendant is an accomplice, the government must prove that the he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.


An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.


Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are “helpers,” while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an “overt act.” An “overt act” is an activity that in some way moves a conspiracy into motion.

How a Defendant’s Mental State Affects His or Her Responsibility for a Crime

What a defendant intended to do often affects how severely he or she will be punished — but not always.

What makes a crime a crime? In most cases, an act is a crime because the person committing it intended to do something that most people would consider wrong. This mental state is generally referred to as “Mens rea,” Latin for “guilty mind.”

The “mens rea” concept expresses a belief that people should be punished (fined or imprisoned) only when they have acted in a way that makes them morally blameworthy. “Mens rea” is never identified as a distinct element of a crime. Instead, moral blame is almost always the underlying justification for the enactment of a criminal law. In the legal system’s eyes, people who intentionally engage in the behavior prohibited by a law have “mens rea;” they are morally blameworthy. For example, a murder law may prohibit “the intentional and unlawful killing of one human being by another human being.” Under this law, one who intentionally and unlawfully kills another person has “mens rea.”

Crimes that Don’t Require ‘Mens Rea’

Laws that don’t require “mens rea” — that is, laws that punish people who may be morally innocent — are called “strict liability laws.” The usual justification for a strict liability law is that the social benefits of stringent enforcement outweigh the harm of punishing a person who may be morally blameless. Examples of strict liability laws include:

“Statutory rape” laws which in some states make it illegal to have sexual intercourse with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to consent legally to sexual intercourse.

“Sale of alcohol to minors” laws that in many states punish store clerks who sell alcohol to minors even if the clerks reasonably believe that the minors are old enough to buy liquor.

Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent. Because the legal consequences of innocent mistakes can be so great in certain circumstances, people who find themselves in situations governed by strict liability rules need to take special precautions before acting.

When a Mistake Will Be The Basis Of a Legal Defense

People who unintentionally engage in illegal conduct may be morally innocent; this is known as making a “mistake of fact.” Someone who breaks the law because he or she honestly misperceives reality lacks “mens rea” and should not be charged with or convicted of a crime. For example, if Paul Smith hits Jonas Sack because he reasonably but mistakenly thought Sack was about to hit him, Smith would have labored under a mistake of fact — and would not have mens rea. It is this same principle that underlies the traditional insanity defense — the defendant so misperceived reality that her actions were caused by a mental disease or defect rather than mens rea.

While a “mistake of fact” can negate mens rea, a “mistake of law” usually cannot. People who intentionally commit illegal acts are almost always guilty, even if they honestly don’t realize that what they are doing is illegal. For example, if Jo sells cocaine in the honest but mistaken belief that it is sugar, Jo has made a mistake of fact and may lack mens rea. However, if Jo sells cocaine in the honest but mistaken belief that it is legal to do so, Jo is considered morally blameworthy. Perhaps the best explanation for the difference is that if a “mistake of law” allowed people to escape punishment, the legal system would be encouraging people to remain ignorant of legal rules.

When Carelessness Amounts to Criminal Behavior

“Ordinary” carelessness is not a crime. For example, negligent drivers are not usually criminally prosecuted, though they may have to pay civil damages to those harmed by their negligence. However, more-than-ordinary carelessness can demonstrate “mens rea.” Common terms for morally blameworthy carelessness are “recklessness” and “criminal negligence.” Unfortunately, no clear line separates non-criminal negligence from recklessness and criminal negligence. In general, carelessness can amount to a crime when a person “recklessly disregards a substantial and unjustifiable risk.” Indefinite language like that cannot always rationally draw a line between ordinary and criminal carelessness. Police officers and prosecutors have to make the initial decisions about whether to charge a careless person with a crime. At that point, it’s up to judges and juries to evaluate a person’s conduct according to community standards and decide whether the carelessness is serious enough to demonstrate “mens rea.”

What ‘Knowing’ or ‘Knowingly’ Means

Many laws punish only violators who “knowingly” engage in illegal conduct. The “knowingly” requirement indicates that a crime involves “mens rea,” and prevents people who make innocent mistakes from being convicted of crimes. Since most crimes require mens rea anyway, the word knowingly is often redundant. What a person has to “know” to be guilty of a crime depends on the behavior that a law makes illegal. For example:

A drug law makes it illegal for a person to “knowingly” import an illegal drug (often referred to as a “controlled substance”) into the United States. To convict a defendant of this crime, the prosecution would have to prove that a defendant knew that what he brought into the United States was an illegal drug.

Another drug law makes it illegal to furnish drug paraphernalia with “knowledge” that it will be used to cultivate or ingest an illegal drug. To convict a defendant of this crime, the prosecution would have to prove that a defendant who sold or supplied drug paraphernalia knew about the improper purposes to which the paraphernalia would be put.

A perjury law makes it illegal for a person to testify to any material matter which she or he “knows” to be false. To prove perjury, the prosecution would have to prove that the defendant knew at the time she testified that her testimony was false.
A school safety law makes it illegal for a person to “knowingly possess a firearm in a school zone.” To prove a violation of this law, the prosecution would have to prove both that the defendant knew that he was carrying a gun and that he was in a school zone.

‘Specific Intent’ Crimes

“Specific intent” laws require the government to do more than show that a defendant acted “knowingly.” Specific intent laws require the government to prove that a defendant had a particular purpose in mind when engaging in illegal conduct. Each specific intent law identifies the particular purpose that the government has to prove. For example, many theft laws require the government to prove that a defendant took property “with the intent to permanently deprive a person of the property.” To convict a defendant of theft, the government has to prove that a thief’s plan was to forever part a victim from his or her property. For example, a culprit who drives off in another’s car without permission and returns it a few hours later might be convicted only of “joyriding.” However, the same culprit who drives off in another’s car without permission and takes it across the country probably demonstrates a specific intent to permanently deprive the owner of the car and would be guilty of the more serious crime of car theft.

Crimes Requiring ‘Malicious’ Behavior

In everyday usage people often use the term “malicious” to mean “spiteful” or “wicked.” In most criminal statutes, however, “maliciously” is simply synonymous with “intentionally” and “knowingly.” As a result, the term “maliciously” usually adds nothing to the general “mens rea” requirement. As used in murder statutes, however, the term “malice” is often interpreted as meaning the defendant had a “man-endangering” state of mind” when the act was committed, which is enough to justify at least a second degree murder charge.

Crimes Requiring ‘Willful’ Behavior

As with “maliciously,” the term “willfully” usually adds nothing to the general “mens rea” requirement. In most statutes, to commit an illegal act “willfully” is simply to commit it intentionally. For example, consider these statutes:

“It is unlawful to willfully disturb another person by loud and unreasonable noise.”
“Anyone who willfully encourages another to commit suicide is guilty of a felony.”

Each of these statutes merely requires the government to show that a person intentionally committed the act made illegal by the statute.

Less commonly, the term “willfully” in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which “ignorance of the law” actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law’s requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).) This more exacting interpretation of “willfully” preserves the “mens rea” foundation of criminal law where, as in the “declaring cash” law, many people might be morally innocent yet break the law.

Crimes Requiring ‘Felonious’ Behavior

The term “felonious” is sometimes included in a law when prohibited conduct can in some circumstances be interpreted as a misdemeanor or as a felony. For example, “felonious assault” in a statute would refer to those types of assault — such as “assault with a deadly weapon” or “assault with intent to commit great bodily injury” — that are typically treated as felonies.

The Role of ‘Motive’ in Criminal Law

“Motive” generally refers to the reason behind an illegal act. For example, a person’s need to raise money quickly to pay off a bookie may be the motive for a robbery; revenge for a personal affront may be the motive for a physical attack. Prosecutors often offer motive evidence as circumstantial evidence that a defendant acted intentionally or knowingly. The reason is that like most people, judges and jurors believe in “cause and effect.” They are more likely to believe that a defendant had “mens rea” if they know that the defendant had a motive to commit an illegal act. While prosecutors frequently do offer “motive” evidence, they are not required to do so. By the same token, defendants may offer evidence showing that they had no motive to commit a crime, and then argue that the lack of a motive demons trates reasonable doubt of guilt.

How People Get Charged With Crimes

Learn how police officers and prosecutors initiate criminal cases.

To be “charged” with a crime means to be formally accused of that crime. Police officers usually start the charging process with an arrest or citation. They then send copies of their reports to a prosecutor’s office staffed by government lawyers whose job it is to initiate and prosecute criminal cases. The prosecutor is supposed to either:

Make an independent decision as to what charges should be filed, or
In felony cases, enlist the help of citizens serving as grand jurors in deciding what charges to file.
Prosecutors can look at all the circumstances of a case, including the suspect’s past criminal record. They can file charges on all crimes for which the police arrested a suspect, can file charges that are more or less severe than the charges leveled by the police, or can decide to not file any charges at all.

Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers (usually called police or arrest reports). Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, weather conditions and witnesses’ names and addresses if that information is available.

Occasionally a prosecutor will decide that a basically good person made a stupid mistake that shouldn’t result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice, or because it would be a waste of resources (time and money) to charge such a person with a crime, even where the initial arrest was valid.

The Role of a Grand Jury

If a felony is involved, prosecutors sometimes leave it to grand juries to make the charging decisions. Grand juries are similar to regular trial juries (technically called “petit juries”) in that they are made up of randomly selected individuals who listen to evidence and decide whether charges should be brought against a particular individual. However, unlike petit juries, which only sit on one case, grand juries involve a time commitment typically lasting between 6 and 18 months, and the grand jurors may, in the course of their service, address many cases. In addition, these crucial differences exist:

Petit jurors decide whether defendants are guilty. Grand juries decide whether to “indict” suspects (charge them with crimes.)
Grand juries meet in secret proceedings. Petit juries serve during public trials.
Grand juries have 15-23 people, 16-23 in federal courts. (See Federal Rule of Criminal Procedure 6(a).) By contrast, a petit jury usually consists of between 6 and 12 people.
Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

How a Grand Jury Works

When a prosecutor brings a case to the Grand Jury, he presents the jurors with a “bill” (the charges) and introduces evidence — usually the minimum necessary, in the prosecutor’s opinion — to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or her witnesses being present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however — and this is a big reason why prosecutors like to keep the evidence to the minimum.

Although the prosecutor can also call the suspect as a witness, this is not typically done. And even if a suspect is called, she will probably invoke her privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.

If the grand jury decides to indict, it returns what is called a “true bill.” If not, the grand jury returns a “no-bill.” But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.

If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to convict the defendant. However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. This means that most prosecutors choose the grand jury indictment process so that they don’t have to produce as much evidence before the trial.


These frequently asked questions explain how judges decide what a convicted defendant’s punishment will be.

Who determines what punishment a convicted defendant receives?

Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant’s guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

Where can the prescribed punishment for crimes be found?

Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, “For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both.” Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor, or, in some states, for all misdemeanors.

Do people convicted of the same or similar crimes receive similar sentences?

Some state and all federal criminal statutes include “mandatory sentences,” which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures or Congress to their perception of the public’s desire to end judicial leniency and treat alike all people who break the same law.
More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant’s past criminal record, age, sophistication, the circumstances under which the crime was committed and whether the defendant genuinely feels remorse. In short, mandatory sentence laws “fit the punishment to the crime”; whereas judges prefer to “fit the punishment to the offender.

What factors do judges use in determining sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge’s attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called “mitigating” factors):
The offender has little or no history of criminal conduct
The offender was an accessory (helped the main offender) to the crime but was not the main actor
The offender committed the crime when under great personal stress, for example, had lost a job, rent was due and had just been in a car wreck, or
No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.
Just as mitigating circumstances can sway a judge to lessen a sentence, “aggravating” circumstances can compel a judge to “throw the book at” an offender. A previous record of the same type of offense is the most common aggravating factor. Often, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.

Key Aspects of Modern Criminal Procedure: Defendant’s Rights

A quick tour of the ways in which the U.S. Constitution attempts to ensure fair treatment for criminal defendants.

There are two fundamental aspects of the U.S. criminal justice system — the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt. But criminal defendants have other rights too. Here we explore some of the other hallmarks of basic criminal procedure.

The Defendant’s Right to Remain Silent

The Fifth Amendment to the U.S. Constitution provides that a defendant cannot “be compelled in any criminal case to be a witness against himself.” In short, the defendant has the right to “sit mute.” The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.

The Defendant’s Right to Confront Witnesses

The “confrontation clause” of the Sixth Amendment gives defendants the right to “be confronted by the witnesses against” them. Implicit in this right is the right to cross-examine witnesses — that is, the right to require the witnesses to come to court, “look the defendant in the eye,” and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant’s guilt with written statements from absent witnesses.

Special Confrontation Rules for Child Sexual Assault Cases

In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant’s presence. To address this problem, many states have enacted special rules that authorize judges — in certain situations — to allow children to testify via closed circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and can cross-examine the child.

The Defendant’s Right to a Public Trial

The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant’s family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.

In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom when it appears that they will coach each other.

The Defendant’s Right to a Jury Trial

The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a “hung jury,” and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side — but these decisions (called peremptory challenges) may not be based on the juror’s personal characteristics such as race, sex, religion or national origin.

The Defendant’s Right to be Represented by an Attorney

The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility. Otherwise, the judge would be locked into giving an unrepresented defendant a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.

A judge normally appoints the attorney for an indigent defendant at the defendant’s first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.

The Defendant’s Right to a Speedy Trial

The Sixth Amendment gives defendants a right to a “speedy trial.” However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay and whether the delay has prejudiced (harmed) the defendant’s position.

Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.

The Defendant’s Right Not to Be Placed in Double Jeopardy

Among the several clauses of the Fifth Amendment to the U.S. Constitution is this well-known provision: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges at one time in the same case.

One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different jurisdictions. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.

Furthermore, the double jeopardy clause forbids only more than one criminal prosecution growing out of the same conduct. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same crime. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.

Lie Detector Tests: Truth and Consequences

Learn how polygraph tests work, as well as what supporters and detractors have to say about them.

The theory underlying a lie detector test — or a polygraph test, in more scientific terms — is that lying is stressful, and that this stress can be measured and recorded on a polygraph machine. Lie detectors are called polygraphs because the test consists of simultaneously monitoring several of the suspect’s physiological functions — breathing, pulse and galvanic skin response — and printing out the results on graph paper. This printout shows exactly when, during the questioning period, the biologic responses occurred. If the period of greatest biologic reaction lines up with the key questions on the graph paper — the questions that would implicate the person as being involved with the crime — stress is presumed. And along with this presumption of stress comes a second presumption — that the stress indicates a lie.

Supporters of lie detector tests claim that the test is reliable because:

very few people can control all three physiological functions at the same time, and
polygraph examiners run pre-examination tests on the suspect that enable the examiners to measure that individual’s reaction to telling a lie.
On the other hand, critics of polygraph testing argue that:

many subjects can indeed conceal stress even when they are aware that they are lying, and
there is no reliable way to distinguish an individual’s stress generated by the test and the stress generated by a particular lie.
The courts in most jurisdictions doubt the reliability of lie detector tests and refuse to admit the results into evidence. Some states do admit the results of polygraph tests at trial if the prosecution and defendant agree prior to the test that its results will be admissible.

Many police agencies have begun to use Voice Stress Analysis (VSA) in their investigation of crimes. VSA does not require the subject be physically connected to any device, and some investigators claim to be able to perform the analysis over the phone.

Scientific Evidence

Scientific evidence is information that has been developed through a process known as the “scientific method” — meaning that the information is considered valid because it has been tested and shown to accurately describe what it purports to describe. Typically, scientific evidence has been published in journals, tested by other scientists and generally accepted as valid within the relevant scientific community. Common examples of scientific evidence include DNA analyses, hair and fiber comparisons, fingerprints and voice identification evidence. Because scientific evidence is by definition beyond the realm of judges’ and jurors’ everyday experiences, the prosecution and the defense use qualified expert witnesses to introduce scientific evidence into the courtroom.

There are, of course, rules about when and how scientific evidence may be used in court. If a scientific theory is well established, testimony from a qualified expert witness based on that theory is usually admissible at trial, without additional expert testimony regarding the reliability of the evidence. For example, an expert is seldom necessary to convince a judge of the validity of fingerprint analysis or radar speed testing devices. However, as novel scientific theories emerge, experts must convince judges that information based on these new ideas is reliable and therefore appropriate for consideration by the judge or jury.

To establish the reliability of scientific evidence, the party seeking to introduce the evidence ordinarily schedules a “mini-trial” in which an expert testifies and explains the scientific methodology involved. For example, to use DNA evidence for the purpose of identifying a suspect (by comparing samples taken from the suspect with samples found at the crime scene), some judges still require the prosecutor to establish the reliability of that evidence in a mini-trial. If the judge is then convinced of its reliability, DNA evidence can be used in that case. Most courts, however, now accept DNA evidence as reliable and do not require a foundation (the function of the mini-trial) for its use.

What Makes a Case a Criminal Case?

There are two fundamentally different types of court cases — criminal and civil. A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime by Congress or a state legislature. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. Among the important differences between criminal and civil cases are these:

In a criminal case a prosecutor, not the crime victim, initiates and controls the case. The prosecutor may file criminal charges even if the victim doesn’t approve, or refuse to file criminal charges despite the victim’s desire that criminal charges be filed. This method of beginning the case contrasts with civil cases where the injured party is the one who starts the ball rolling — although if you view the prosecutor as a stand-in for the community injured by a crime, then there’s not much difference.
A person convicted of a crime may pay a fine or be incarcerated or both. People who are held responsible in civil cases may have to pay money damages or give up property, but do not go to jail or prison. (We don’t have “debtors’ prisons” for those who can’t pay a civil judgment.)

In criminal cases, government-paid lawyers represent defendants who want but can’t afford an attorney. Parties in civil cases, on the other hand, usually have to represent themselves or pay for their own lawyers. (Juvenile court cases and cases involving civil contempt of court where jail is a possibility, are exceptions to this general rule.)
In criminal cases, the prosecutor has to prove a defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff has to show only by a “preponderance of the evidence” (more than 50%) that the defendant is liable for damages.

Defendants in criminal cases are almost always entitled to a jury trial. A party to a civil action is entitled to a jury trial in some types of cases, but not in others.
Defendants in civil cases may be jailed for contempt, as happened to Susan McDougal in the Whitewater case.

Sometimes the same conduct may violate both criminal and civil laws. A defendant whose actions violate both criminal and civil rules may be criminally prosecuted by the state and civilly sued by a victim for monetary damages. For instance, in 1995 O. J. Simpson was prosecuted for murder and found not guilty. In an entirely separate case, Simpson was also sued civilly for “wrongful death” by the victims’ families. At the close of the civil case, in 1997, Simpson was found “liable” for (the civil equivalent to guilty meaning “responsible” for) the victims’ deaths and ordered to pay millions of dollars in damages.