Vote simply to avoid being called for jury duty. So some states now base

their lists for jury duty on drivers’ license lists, in the belief that a greatF

er section of citizens will be represented.

No matter how the original polling list is established, there are

always some exclusions. For example, literacy is usually required,

minors are excluded, persons with felony convictions, those hospiF

talized for mental illness or for serious medical conditions and those

who are members of essential occupations, such as firefighters, poF

lice officers, physicians, nurses, legislators, clergymen, and in many

places attorneys, teachers and professors. People who are called for

jury duty may be excused, usually for some cause such as illness or

childcare responsibilities.

2. Voir Dire

Once a panel of potential jurors willing and able to serve has been

selected, some may still be excused from a particular case upon the

request of the prosecutor or the defense counsel. These exclusions can

take one of two forms: peremptory challenge and forFcause removal.

A peremptory challenge is the informal dismissal of a potential juror

upon the whim or trial sense of the prosecutor or defense lawyer; no

explanation need be given or any cause demonstrated. Statutes or

court rules usually limit the number of peremptories allowed, and

once used up, potential jurors can only be removed for cause. That

is, the prosecutor or defense attorney must prove to the judge that

attitude

trial

hearing

defendants

law

crime

report

offender

decision

background

community

judge

impose a just sentence

presentence investigation (PSI)

court sentence

guilty plea

to impose a just sentence

past record

sentence hearing

probation officer

personal traits

sentence decision

a report

Unit 25

146 147

there is some factor in the potential juror’s background or attitudes

likely to bias his or her eventual decision in the case, upon which baF

sis the judge then grants a dismissal.

Peremptory challenges and removals for cause are both normalF

ly based on potential jurors’ responses to voir dire questioning. The

voir dire («to speak the truth») examination allows attorneys for both

sides to question each potential juror in order to decide whether that

person is suitable for the case from a prosecution or defense point of

view. In general, voir dire focuses on the juror’s previous familiarity

with the case, his or her association with anyone involved in the case,

his or her attitudes toward certain types of crimes, people, and punF

ishments, any preconceived ideas about the guilt or innocence of the

defendant, and any similar matters likely to affect the juror’s eventuF

al decision in the case.

In theory, the purpose of voir dire is to ascertain if a potential juF

ror can render a fair and impartial verdict. In practice, neither peF

remptory nor cause jury exclusions based on the voir dire examinaF

tions are really designed to obtain an impartial jury. Both sides use

both forms of exclusion tactically in attempts to build a partial jury,

favorable to the sides of the case the attorneys represent. One side or

the other may want more or fewer women on the jury, may wish to

build the jury around some age span thought to be advantageous, or

may try to equalize or slant the racial mix of jurors.

Notes

1. voir dire – «казати правду» (старофранц.), допит судом

присяжного з метою з’ясувати його неупередженість

2. peremptory challenge – відвід присяжного без пояснень

3. forFcause removal – відвід присяжного за конкретною вкаF

зівкою

4. bias (n) – упередженість, справляти вплив (на) (v)

Exercises

1) Find the answers to the following questions in the text above:

1. How many persons is the trial jury composed of?

2. Do some states allow smaller bodies of jury?

3. How are jury members selected?

4. Why do people often choose not to register to vote?

5. In what cases do some states base their lists for jury duty on drivF

ers license list?

6. Who is usually excluded from a list of potential jurors?

7. What does the term «voir dire» mean?

8. What are the two forms of exclusions made by a prosecutor or a

defense attorney?

9. What is a purpose of voir dire in theory (in practice)?

2) Say whether these statements are true or false:

1. There is a special law that all citizens must register to vote.

2. There are no constitutional requirements as to a number of jurors

in criminal cases.

3. Some states and federal jurisdiction require 12F member jury bodF

ies in all felony cases.

4. Jury members are ordinary people selected by chance.

5. Various studies have shown that all of those eligible to vote regisF

ter to do so.

6. Firefighters, nurses, teachers, police officers and also those hosF

pitalized for serious medical conditions are excluded from the list

of potential jurors.

3) Match the English noun phrases with their Ukrainian equiva"

lents:

1. trial jury 1. список водіїв, які мають

посвідчення

2. voter registration rolls 2. безсторонній вердикт

3. eligible to vote 3. засудження за вчинення

тяжкого злочину

4. drivers’ license list 4. склад присяжних

5. felony conviction 5. ті, хто мають правo

голoсувати

6. mental illness 6. списки зареєстрованих

виборців

7. impartial verdict 7. обов’язки по догляду за

дитиною

8. body of jury 8. розумова хвороба

9. child care responsibilities 9. суд присяжних

Unit 26 Jury Selection and Voir Dire

148 149

4) Match the English verb phrases with their Ukrainian equivalents:

5) Give Ukrainian equivalents to the following words and phrases:

juror; trial juror; jury; body of jury; to require a 12F member body

of jury; to call for jury duty; death sentence; community; polling list;

literacy; minors; essential occupation; firefighters; physicians; upon

the whim; trial sense; age span; punishment; preconceived ideas about

guilt or innocence.

6) Give English equivalents to the following words and phrases:

«казати правду»; відбір присяжних; суд присяжних; списки

виборців; священик; законодавець; хірург; медсестра; примха;

смертна кара; знайомство зі справою; виключити із списку;

безстороннє журі; впливати на рішення присяжних; пожежник;

небезстороннє журі.

7) Find words and phrases in the text that mean:

1. examination which allows attorneys for both sides to question

each potential juror to decide whether that person is suitable for

the case from a prosecution or defense point of view.

2. the informal dismissal of a potential juror upon the whim or trial

sense of the prosecutor or defense lawyer without giving any exF

planations or demonstrating any cause.

3. the prosecutor or defense attorney must prove to the judge that

these are some factors in the potential juror’s background or atF

titudes likely to bias his or her eventual decision in the case.

4. members of essential occupations who are usually excluded from

a list of potential jurors.

8) Fill in the blanks using words and phrases given in the box. Ren"

der the text into Ukrainian:

No matter how the original … … is established there is always

some … . In theory the purpose of … … is to ascertain if … … can renF

der … and … verdict. Unlike … there is no limit to … for … . This is

why … … may take so long. If the … has been heinous and the defenF

dant is … , finding … local … who can be truly impartial in hearing

the case may be difficult. It remains a question whether the use of

peremptory or … … negates the formation of … . There have been two

interesting decisions on this point from … … . In 1965 in Swain V.

Alabama the court … the practice of using peremptory challenges to

exclude jurors for reasons of race. However, in 1986 the court in BatF

son V. Kentucky held that … may not be excluded from a jury because

… believes they may … a defendant of their own race. Thus, the Court

held in Batson that a prosecutor cannot peremptorily … potential juF

rors solely on … … or assumption that … … as a group will be unable

to impartially … the prosecutor’s case against … … .

9) Read the text. Render it into Ukrainian:

Jury selection has always been a controversial problem. In the

colonial period, for example, when the United States was a country

of towns and villages, selecting a jury of peers, «equals» in the comF

mon meaning of this term, could not be achieved, for major segments

of the population, including women and slaves, were excluded from

jury duty. And even today, after black emancipation and in the era of

«women’s rights», there is a question of whether the «peer» ideal can

be approximated, not only in metropolitan courts but in smaller juF

risdictions. Moreover, the issue is by no means limited to the under

representation of blacks or women on juries.

Part of the problem is caused by jury selection practices, primaF

rily certain exclusion provisions, which by law or custom keep those

1. to select by chance 1. винести вердикт

2. to bias a decision 2. зрівняти расові відмінності

3. to excuse the jury 3. відбирати наздогад

4. to respond to questions 4. підходити до справи

5. to exclude minors 5. відповідати на запитання

6. to render a verdict 6. виключити меншість

7. to be suitable for the case 7. звільнити присяжного (від

обов’язків)

8. to equalize the racial mix 8. справляти вплив на рішення

fair

impartial

US Supreme Court

to favor

to consider

to uphold

to challenge

a jury

on account of race

notorious

peremptory

polling list

voir dire

a black defendant

for-cause challenge

blacks

exclusions

jury selection

notorious

peremptory

challenge

potential jurors

removals for cause

twelve citizens

Unit 26 Jury Selection and Voir Dire

150 151

who do not own property or who do not have a permanent residence

(often members of ethnic and racial minorities) of jury panels. BeF

cause criminal defendants are often poor, transient, and members of

minority groups, such exclusions are left to weaken the spirit, if not

the letter, of the law regarding peer judgment. Although the law does

not require juries to mirror all the economic, social, and personal

characteristics of a defendant – in fact, a «peer» is generally held to

be any other citizen – systematic exclusion practices have tended to

weaken the philosophy of the jury trial.

10) Talk on jury selection using additional information given in the

text above.

Unit 27

The Criminal Trial

The Sixth Amendment to the Constitution reads:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, and to be informed of

the nature and cause of the accusation; to be confronted with the witF

nesses against him; to have compulsory process for obtaining witnesses

in his favor and to have the assistance of counsel for his defense.

In most places, defendants who plead not guilty to felony charges

can opt for either a jury or a bench trial, the latter meaning the judge

acts alone as the fact finder. In general, jury trials in felony cases can

be waived if both the defendant and the defense counsel agree. In some

states, the prosecutor must consent to such a waiver. In about oneFthird

of state jurisdictions, the jury cannot be waived in any felony matter.

And in still others, a waiver is permitted in all but capital cases.

Bench Trials.

In most cases, a defendant can choose to stand trial before a judge

sitting alone. This is a bench trial for the word «bench» is commonly used

as a synonym for «court» or «judge». Generally, jury trials are waived by

defendants as a tactical matter in cases involving highly technical legal

issues. The judge, being a lawyer, understands and is accustomed to conF

sidering fine and subtle points of law, whereas jurors are «civilians» and

may not fully understand important legal matters in a technical defense.

On the other hand, jury trials are eagerly sought in cases that have intense

emotional overtones, where the outcome is more likely to rest on jury

sympathies than on fine points of the law. For instance, a defendant acF

cused of a complex fraud or charged with a conspiracy to commit a crime

may choose a bench trial because of the legal complexities involved in

proving such crimes. On the other hand, a defendant charged with the

homicide of a fatally ill relative who wishes to enter a defense of «mercy

killing» may perhaps prefer to be tried by a jury.

The comparative tactical advantages and disadvantages of bench

versus jury trials have generated a good deal of discussion. Waiver of jury

trial is often believed to be advantageous to a defendant when (1) the case

has been the subject of a great deal of adverse publicity, (2) a highly techF

Unit 26

152 153

nical defense will be utilized, or (3) it is believed that jurors are likely to

be unsympathetic to the defense. Studies of jury behavior have demonF

strated that while judges and juries agree on the outcome of cases about

75 percent of the time, juries are significantly more lenient – more likeF

ly to acquit – than judges in the remaining 25 percent of cases.

Jury Trials

The right to a jury trial in felony cases is absolute, but in cases

where a lesser offense is charged, jury trials are not always available.

Constitutional provisions in many jurisdictions do not extend the right

to jury trial to cases involving «petty offenses» unless the offense carF

ries a potential punishment of more than 6 months in jail. Petty ofF

fenses include the least severely punished misdemeanors and violaF

tions, such as disorderly conduct, other public – order crimes, and

minor traffic violations. In some states the trial judge is required to

file a memorandum in support of the finding of guilt after a bench

trial. In contrast, juries do not give reasons for their findings of guilt

or innocence. A jury decision to convict, however, may be set aside

by the trial judge if the judge believes that evidence failed to meet the

«beyond a reasonable doubt» test.

The judge’s power to overrule the jury is one directional only. No

matter how convinced the judge is that the defendant is guilty the

judge cannot order a jury to convict, nor can a judge set aside an acF

quittal. The presumption of innocence is no longer just a presumpF

tion if either the jury or the judge so finds. And a finding of innocence

cannot be overturned; only a conviction can be reversed by judicial

action. The fact remains, however, that most jury trials result in the

conviction of the accused for some offense.

Notes

1. … can opt for either a jury or a bench trial – можуть вибирати

між судом присяжних та судом без присяжних

2. a jury trial ... can be waived – можна відмовитися від суду

присяжних

3. «mercy killing» – «вбивство з милосердя»

Exercises

1) Find the answers to the following questions in the text above:

1. What shall the criminal trial be according to the Sixth AmendF

ment to the US Constitution?

2. When may a trial jury in a felony case be waived?

3. Is a waiver permitted in capital cases?

4. What does the word «bench» mean?

5. What is a bench trial?

6. What are advantages and disadvantages of bench trials?

7. When is the right to a jury trial absolute?

8. What are petty offenses?

9. Can a judge order the jury to convict the defendant or aside an

acquittal?

2) Read the following statements and say whether these statements

are true or false:

1. In most places, the defendant who pleads not guilty to a felony

charge chooses either a jury or a bench trial.

2. In some states the prosecutor’s consent is not obligatory to a waivF

er from a jury trial in a felony case.

3. The right to a jury trial in felony cases is absolute.

4. Juries do not give reasons for their findings of guilt or innocence.

5. If the judge believes that the evidence failed to meet the »beyond

a reasonable doubt « test he or she may set aside a jury decision

to convict.

6. A defendant cannot choose a bench trial in most cases.

7. In a bench trial a judge acts alone as a fact finder.

8. A word «bench» is commonly used as a synonym for a «jury».

3) Fill in the blanks using words and phrases given in the brackets:

1. In all … … the accused is enjoyed the right to a … and … trial.

2. The accused must be confronted with the … against him/her.

3. The accused must have … … for obtaining witnesses in his/her

favor.

4. The accused must be informed of … and … of the accusation.

5. The accused must have the assistance of … … .

(compulsory process; criminal cases; witnesses; public; nature; coun"

sel for the defense; cause; speedy).

4) Match the English noun phrases with their Ukrainian equivalents:

1. bench trial 1. вбивство

2. jury trial 2. засудити винного

Unit 27 The Criminal Trial

154 155

5) Give Ukrainian equivalents to the following words and phrases:

to obtain witnesses in one’s own favor; an impartial jury; felony

charges; to give a consent to a waiver; to be advantageous; technical

legal issues; to be unsympathetic to the defense; to acquit; to be leF

nient.

6) Give English equivalents to the following words and phrases:

незначні правопорушення; дрібне хуліганство; вбивство;

таємна змова; провина; невиновність; засудити; смертна кара;

скасувати рішення журі; тяжкий злочин; менш тяжкий злочин;

вибирати; відмовлятися від суду присяжних; поправка до

конституції.

7) Find words and phrases in the text which mean:

1. a crime that carries a penalty of more than a year in prison

2. a person called upon by either side in a criminal trial to give tesF

timony before a judge or jury

3. a court proceeding in which a judge, sitting alone decides the facts

4. the least severely punished misdemeanors and violations

8) Talk on tactical advantages and disadvantages of bench versus

jury trials completing the following statements:

1. A defendant guilty of felony charges can opt …

2. A jury trial may be waived if …

3. A bench trial is …

4. A defendant accused of complex fraud…

5. Waiver of jury trials is often advantageous to a defendant when …

6. Juries do not give reasons …

7. A jury decision to convict …

8. A finding of innocence cannot be overturned …

9. Most jury trials result ...

9) Read the following text. Explain, what the term «Speedy trial»

means.

Speedy Trial

The «time to trial» is the time that elapses between the arrest of a

suspect and the commencement of the trial, which, in our system of

justice, must be «speedy.» The time does not begin to count until an

arrest has been made. Thus a suspect who has fled and cannot be loF

cated can hardly claim denial of a speedy trial when caught later and

eventually tried.

Speedy trial provisions, however, relate not to absconders but to

defendants already under arrest. Today, with the courts in many juF

risdictions crowded, the time between arrest and trial is often very long

even when both sides, state and defense, wish to get on with it. The

court calendar problem is such that trial justice is routine but slow.

This remains a major problem for our criminal justice system, parF

ticularly in crowded metropolitan court districts.

Speedy trial provisions, found today in most state statutes, seek

to prevent undue delay in bringing cases to court, to prevent person

from being held for extended periods of time in custody awaiting fiF

nal judgment.

Delaying a trial has advantages and disadvantages for both sides

in criminal litigation. The state can continue to accumulate evidence

and, in cases in which the defendant is being held in jail, can in efF

fect punish the accused before trial by extending pretrial custody. The

defense, on the other hand, might want a delay so that publicity about

the crime cools down and witnesses’ memories fade.

3. to waive a jury trial 3. справа, яка передбачає

вищу міру покарання

4. a fact finder 4. суд присяжних

5. capital case 5. таємна умова

6. a homicide 6. суд без присяжних

7. a conspiracy 7. шахрайство

8. a fraud 8. відмовитися від суду

присяжних

9. presumption of innocence 9. бути смертельно хворим

10. to convict an accused 10. той, хто вирішує факти

11. to be fatally ill 11. презумпція невинуватості

Unit 27 The Criminal Trial

156 157

Unit 28

Appeals and PostConviction Remedies

The appeal of criminal conviction in US jurisdictions must be

requested by the convicted defendant (now an offender) and granted

at the discretion of the higher court. Exceptions include the military

system of justice, which provides for automatic appeals. Appeals by

the defendant must be instituted within a specified time after convicF

tion, although for good cause appellate courts in some jurisdictions

may extend this period.

Generally there are two classes of appellate review sought by deF

fendants. The first involves appeal of conviction by trial, including

appeal of denial of pretrial motions to suppress certain evidence. UsuF

ally appeals of guilty plea convictions are not permitted because a

guilty plea waives this right. The second class involves challenge of the

conditions of custody; this follows conviction and is referred to as

postFconviction relief. Appeals of convictions proceed in various ways,

with a few jurisdictions requiring approval by the trial court first. But

more commonly they proceed by a writ of error (requiring the appelF

late court to review the trial court or to arrest record for errors) or

other writs submitted to the appropriate appellate court. Appeal of

custody is commonly initiated by a writ of habeas corpus (literally

«you have the body,» that is, the person in custody who must be preF

sented to the court).

The appellate process may ultimately involve the entire range of

state and federal courts, eventually reaching the U.S. Supreme Court.

Currently, before appeals move from state to federal review, state remF

edies must be exhausted.

Appeals and other postconviction remedies are usually decided

on the basis of relevant records and briefs, including written presenF

tations of arguments. Frequently appellate arguments are presented

orally before the appellate court by counsel with the petitioner not

physically present. This is an expensive process, beyond the means of

most petitioners. However, a series of U.S. Supreme Court cases has

substantially expanded the right of poor petitioners to obtain court

transcripts and the assistance of counsel at state expense, at least on

first appeal. In effect, under these decisions, if the state allows an apF

peal, then an indigent defendant has the right to free counsel for this

purpose and the transcripts are provided without cost. In addition,

public defenders frequently pursue appeals available to their clients

as well.

Some states also allow appeals by prosecution, under certain reF

stricted conditions. The state cannot appeal a trial court finding of not

guilty, because the defendant is protected from retrial by ConstitutionF

al prohibitions against double jeopardy. But a few states allow rather

broad but «moot» prosecution appeals. These have the possible effect

of settling a legal controversy raised by the case, but no consequencF

es for the individual defendant. Usually such appeals deal with (1)

dismissal charges, indictments, information; (2) suppression of eviF

dence before trial including confessions, admissions, and evidence

obtained by search and seizure; (3) an award of a new trial by the

court; (4) an illegal sentence; or (5) discharge of the defendant on

speedy trial grounds.

Notes

1. at the discretion of – за розсудом

2. for good cause – з вагомої причини

3. remedies – засоби судового захисту

4. to seek (sought) – просити, домагатися, добиватися

5. a writ of habeas corpus – судовий наказ з’явитися до суду

6. relief – звільнення, допомога

7. motions – клопотання, пропозиції

8. court findings – вирок суду

9. briefs – резюме, записки адвоката

Exercises

1) Find the answers in the text above:

1. Who must request the appeal of criminal conviction?

2. What are the exceptions of granting an appeal to an offender?

3. What are the two classes of appellate review sought by a defenF

dant?

4. In what cases do appeals move from state to federal courts?

5. On what basis are appeals and other postconviction remedies usuF

ally decided?

6. What right has an indigent defendant?

Appeals and Post"Conviction Remedies

158 159

7. Under what conditions do some states allow prosecution appeals?

8. What does the 5th Amendment to the US Constitution prohibit?

9. What do prosecution appeals often deal with?

2) Say whether these statements are true or false:

1. The appellate process involves only state courts.

2. Appeals of guilty plea convictions are not usually permitted.

3. Appellate courts in some jurisdictions may extend the specific

period of time passed after conviction.

4. Court transcripts are always provided without cost.

5. Oral presentations of arguments are briefs.

6. The appeals of criminal conviction must be requested by a highF

er court.

7. The appellate process may eventually reach the U.S. Supreme

Court.

3) Match the English noun phrases with their Ukrainian equivalents:

4) Match the English verb phrases with their Ukrainian equivalents:

5) Find in the text the words and phrases which mean:

1. a process at which an issue of fact is examined before a court in

accordance with applicable law.

2. the penalty imposed by a judge upon conviction of the defendant.

3. a convicted defendant.

4. a person accused of a crime.

5. a written account of all the acts and proceedings in a case.

6. an opportunity for a defense counsel to summarize his or her poF

sition in a case and answer the judge’s questions.

6) Give Ukrainian equivalents to the following words and phrases:

remedy; offender; conviction; for good cause; pretrial motions;

a writ of error; a writ of habeas corpus; appeal of custody; appeal of

conviction by trial; postconviction relief; records and briefs; petitionF

er; at state expense; without cost; legal controversy; dismissal of chargF

es; indictment; confession; testimony; admission of evidence; search

and seizure; an award; speedy trial.

7) Give English equivalents to the following words and phrases:

апеляція; злочинець; за розсудом суду; прохач; засудження;

судовий наказ; протокол судового засідання; записки адвоката

до апеляційного суду; забороняти певні докази; домагатися;

рішення про нове судове слухання; звільнення обвинуваченого;

письмове подання аргументів; обмежені умови; скорий суд;

двічі наражати людину на перегляд судового рішення за той

самий злочин.

1. criminal conviction 1. післясудове звільнення

2. convicted defendant 2. перегляд справи в

федеральному

апеляційному суді

3. pretrial motions 3. пред’явлення аргументів

4. conditions of custody 4. письмова копія протоколу

судового засідання

5. postconviction relief 5. засуджений,

обвинувачений

6. federal review 6. апеляція, яку подає

обвинувачення

7. presentation of arguments 7. кримінальне засудження

8. court transcript 8. умови перебування під

вартою

9. prosecution appeal 9. досудові клопотання

1. to suppress a certain

evidence

1. звільнити обвинуваченого

2. to waive the right 2. забороняти розгляд

певного доказу

3. to require an appeal 3. захищати від перегляду

судової справи

4. to present an appellate

argument

4. відмовляти в праві

5. to expand a specific

period of time

5. вирішувати правовий спір

6. to pursue appeals 6. вимагати санкції

7. to protect from retrial 7. подавати апеляції

8. to settle a legal

controversy

8. надавати докази по апеляції

9. to dismiss charges 9. збільшити певний

проміжок часу

10. to discharge a defendant 10. знімати обвинувачення

Unit 28 Appeals and Post"Conviction Remedies

160 161

8) Complete the text translating words and phrases given in brack"

ets. Use the corresponding words and phrases given in the below:

Pretrial Motions

Before (судовий розгляд) is completed, several important (рішенF

ня) are made by (суддя) in response to written requests, called (досудові

клопотання), on behalf of (обвинувачення та захист). Several motions

are available to (кожна з сторін), the most common are:

Motion to dismiss. A defendant may (подати клопотання) to disF

miss a case based on the failure of the prosecution (підтвердити

наявність злочину) because the documents (зібрані обвинуваченням)

are inaccurate. Usually (суд) grants the motion to dismiss, the prosecuF

tion (надається час) to refile (обвинувачення) and correct documents.

Motion to determine the competency of the accused to stand trial.

Usually this motion is filed if the defense believes the defendant

(психічно хворий), or if (захист, побудований на неосудності

особи) is planned.

Motion to suppress evidence. Three types of (заборони доказів)

are common. First, the defense may (домагатися) to exclude (докази)

obtained through (обшук та вилучення) if it appears the search

(проводився без ордера) or if the legality of it was questionable.

Second, the defense can move to exclude (свідчення та заяви) made

to the police by the defendant if it appears they were not made

(добровільно). Third, the defense may (відмовитися від) the preF

trial (ототожнення) of the accused, if it appears that (процедура в

поліції) violated (відповідні процесуальні норми).

9) Give some information on …

1. Types of appellate review sought by a criminal defendant.

2. Grounds for appeals instituted by prosecution.

3. Types of pretrial motions.

trial

evidence

confession

identification

judge

statements

court

warrant

decisions

charges

prosecution

defense

search and rescue

to carry out

to seek

to challenge

to allege a crime voluntary

to grand time

to suppress evidence

to file by prosecution

to file a motion

to be mentally ill

due process standards

defense of insanity

due process

each side

police procedure

pretrial motions

Unit 28 Appeals and Post"Conviction Remedies

162 163

Unit 29

Criminal law and procedure

As a society of approximately 250 million persons, the United

States has an established system of law, procedures and punishments

designed to provide for social order. America has a criminal justice

system to enforce the laws, to protect individuals and the communiF

ty. The system operates by identifying, apprehending, prosecuting,

convicting and sentencing those who violate the laws of the nation and

of its various states.

In theory, the American criminal justice system operates in the

following manner. When a crime has been committed and it becomes

known to the police, the police investigate and attempt to find who

did it. If they are successful, the suspect is then arrested, informed of

his constitutional rights and «booked» when the police officially enF

ter the arrest in their records. The accused is next taken before a judge

or magistrate. If the offence is minor, however, the accused is held for

further action and bail may be set. Bail is an amount of money given

to the court by the suspect in order to be released from custody and

to guarantee his/ her return for trial.

Responsibility for charging the accused with the violation of a

specific law or laws belongs to a prosecuting attorney who is an emF

ployee of the government. If the prosecutor believes the police have

sufficient evidence, he prepares a complaint, identifying the accused

and specifying the charge or charges against him.

At a preliminary hearing, a prosecutor presents the charges and

evidence against the accused before a judge. If the judge determines

that there is sufficient evidence to believe it is probable that the acF

cused has committed the offence, the judge will send the case to a

grand jury, the next step in the process.

At the grand jury stage, the prosecutor presents the evidence to a

grand jury, a group of citizens drawn from the community. The grand

jury meets in secret. The accused has no right to be present or to deF

fend himself before the grand jury. The purpose of this proceeding is

for a group of citizens to determine if sufficient evidence exists for

them to believe it is probable that a crime has been committed and

that the accused has committed it. If the members of the grand jury

find this to be the case, the accused will be formally charged with the

crime (indicted).

Once indicted, the accused is brought before the trial court, inF

formed of the charges against him and advised of pleas he might enF

ter – not guilty, guilty or «no contest». A «no contest plea» is one in

which the accused does not dispute the facts but argues that the facts

do not support a criminal charge. This step in the process is known

as an arraignment. If the accused pleads not guilty, a date for his trial