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Ch 18 Criminal Trial
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Ch 18 Criminal Trial


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  • 1. Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 18: The Criminal Trial
  • 2. Common Pretrial Motions
    • To dismiss the charges against the accused
    • To inspect evidence in the hands of the prosecution
    • For suppression of evidence because of alleged illegalities in gathering it
    • For a change of venue (location) of a trial
    • For a continuance (postponement) of the trial
  • 3. Sixth Amendment Rights
    • The Sixth Amendment to the U.S. Constitution, applicable to state criminal trials by the Fourteenth Amendment, grants a defendant
      • the right to a speedy and public trial by an impartial jury;
      • the right to be informed of the nature and cause of the accusation;
      • the right to confront prosecution witnesses the right to subpoena defense witnesses; and
      • the right to have the assistance of counsel.
  • 4. Jury or Bench Trial?
    • The defense decides whether it wants the case tried by a judge or a jury (the prosecution can't require a jury trial).
    • The Supreme Court has held that defendants in both state and federal prosecutions have the right to a jury trial if they are subject to more than six months incarceration.
    • -- Duncan v. Louisiana (1968)
  • 5. The Right to Jury Trial under Tennessee Law
    • The right to a jury trial applies where a defendant may be sentenced to jail for any length of time.
    • Sessions courts do not conduct jury trials.
    • Defendants accused of misdemeanors who request jury trials must be arraigned in Criminal Court.
    • Such cases are still not likely to result in trials.
  • 6. Juror Qualification & Selection in TN
    • Tennessee Code 22-1-101 provides the basic qualifications for prospective jurors as follows:
      • Every person of  the age of eighteen (18) years, being a citizen of the United States, and a resident of the state of Tennessee, and of the county in which he or she may be summoned for jury service for a period of twelve (12) months next preceding the date of such summons, is legally qualified to act as a grand or petit juror, if not otherwise incompetent under the express provisions of  the Code.
    • The prospective juror list is compiled from driver’s license listings, voter registration rolls, and tax rolls.
      • Source: http://
  • 7. Jury Selection
    • Potential trial jurors (referred to collectively as the venire ) are selected typically, but not universally, from the rolls of registered voters and other official records.
    • The actual process of jury selection, known as voir dire , consists of questioning potential jurors to determine their suitability for jury duty.
    • In the federal courts, voir dire is conducted primarily by the judge; in the states, it is typically conducted by the attorneys for both sides.
  • 8. Peremptory Challenges
    • In all jurisdictions, attorneys may challenge jurors they find to be unsuitable.
    • Attorneys may exercise a limited number of peremptory challenges, which are generally granted as a matter of course.
    • However, peremptory challenges may not be based solely on the race or gender of a prospective juror.
      • See Batson v. Kentucky (1986).
  • 9. Challenges for Cause
    • Unlike peremptory challenges, challenges for cause must be supported by reasons acceptable to the court.
    • There is, however, considerable discretion in the court’s allowance of such challenges.
    • While peremptory challenges are limited in number, there is no set limit to the number of challenges for cause.
  • 10. The Trial Proper
    • The criminal trial is a formal and complex adversarial encounter between the government and the accused.
    • The trial is governed by rules of evidence and procedure that are designed to develop the case in an orderly fashion and assist the fact finder (judge or jury) in reaching the correct result.
  • 11. Order of Trial Procedures
    • Opening statements by counsel
    • Prosecution case-in-chief
    • Defense case-in-chief
    • Closing arguments
    • Jury instructions
    • Jury deliberations
    • Verdict
  • 12. Opening Statements
    • Prosecution goes first
    • Defense goes second
    • May be waived by either side
    • Often waived in bench trials
  • 13. Prosecution case-in-chief
    • The case-in-chief represents the State's main case against the defendant.
      • Judge : “Are the People ready to proceed?” Prosecutor : “We are, Your Honor.” Judge : “Very well. You may call your first witness.”
    • Direct examination of the witnesses for the prosecution
      • Defense cross examination
      • Prosecution redirect
      • Defense recross
  • 14. Motion for Directed Verdict
    • Commonly requested by defense
    • Motion is seldom granted
  • 15. Defense case-in-chief
    • Direct examination of defense witnesses
      • Prosecution cross examination
      • Defense redirect
      • Prosecution recross
  • 16. Rules of Evidence
    • During the trial the court promptly rules on the lawyers’ objections to questions asked of witnesses and objections to materials sought to be introduced in evidence.
    • Objections can be made by a lawyer as to a witness’s competency to testify, as to the relevancy of an inquiry of a witness, or admissibility of documents, photographs, x-rays, and so forth.
  • 17. Objectionable Evidence
    • Hearsay (oral and written statements by someone not in court to be cross-examined, but there are many exceptions)
    • Best evidence rule (produce the original document or explain its absence)
    • Opinion (lay witness limited to expressing opinion on matters of common knowledge; expert witness can give opinion on matters within expert's field)
  • 18. Objections
    • During the trial the court promptly rules on the lawyers’ objections to questions asked of witnesses and objections to materials sought to be introduced in evidence.
    • Objections can be made by a lawyer as to a witness’s competency to testify, as to the relevancy of an inquiry of a witness, or admissibility of documents, photographs, x-rays, and so forth.
  • 19. The most frequent objections in this case would likely be that…
    • the question is leading (but this is permitted on cross-examination);
    • the question calls for hearsay testimony (although there are many exceptions);
    • the question seeks an opinion of a lay witness not within common knowledge;
    • the written evidence submitted is not the best evidence.
  • 20. Privileges not to Testify
    • Marital privilege - preserves domestic harmony; avoids unreliable testimony
    • Attorney-client privilege - allows person to tell all to a trusted advisor
    • Clergy-penitent privilege - allows person to tell all to obtain spiritual guidance
  • 21. Jury Instructions
    • Elements of the crime
    • Presumption of innocence
    • Reasonable doubt standard
    • Decision rule
      • Unanimity rule
        • English common law
        • Federal rules
        • Tennessee rules
  • 22. Closing Arguments
    • Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict.
    • Defense closing argument. 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.
  • 23. Jury Deliberations
    • The jury retires, elects a foreperson, deliberates, and attempts to arrive at a verdict.
    • In federal (and most state) criminal trials, a jury verdict must be unanimous. A few states accept less than unanimous verdicts.
    • The Supreme Court has approved non-unanimous verdicts by twelve-person juries, but has held that a conviction by a nonunanimous six-person jury in a state trial for a nonpetty offense violates the Sixth Amendment.
  • 24. Polling the Jury
    • The court or any party may have the jury polled individually asking each juror, “Is this your verdict?”
    • If any juror expresses dissent from the verdict, the trial judge may either direct the jury to retire for further deliberation or discharge the jury.
  • 25. What if the Jury is Deadlocked?
    • If the jury is deadlocked , the trial judge can either declare a mistrial or urge the jury to make further attempts to arrive at a verdict by giving a supplemental instruction ( Allen charge).
    • A mistrial does not prevent the prosecution from trying the defendant again before a different jury.
  • 26. Jury Pardons
    • A jury nullification or jury pardon occurs when a jury disregards the evidence and the judge’s instructions and acquits a defendant or convict the defendant for a lesser offense.