The essence of
all pre-trial due process protections discussed so far is to secure a fair
trial for the defendant. Upon conclusion of the pre-trial stages, the parties
proceed to the trial stage bearing in mind three basic principles of American
Criminal procedural due process that:
The defendant shall be presumed innocent until proven guilty,
The burden of proving the guilt of the defendant falls upon the
prosecution, and
The standard of proof is proof beyond a reasonable doubt.
The trial
stage is unquestionably the heart of the American adversary system of criminal
procedure. The central idea behind the adversary criminal process is that
proceedings should be structured as a dispute between two theoretically equal
parties who enjoy almost unlimited freedom in defining legal and factual
boundaries of their battle. It is believed "that partisan advocacy on both
sides of a case will best promote the ultimate objective that the guilty be
convicted and the innocent go free." The sole responsibility of
investigating the facts, interviewing possible witnesses, consulting possible
experts, and determining what will or will not be presented is given to the
parties. Both parties are absolutely free to choose the way they wish in
presenting their case. They select issues and control the flow of information
relevant to the issues. Logically, each party is expected to present one-sided
view of the facts and interpret the law in the light most favorable to its side
and, through skillful and strategic use of available procedural instruments, to
challenge the soundness of the case built by the other side.
American trial procedure is
characterized by very strong reliance on two decision-makers, the jury (as to
questions of fact) and the judge (as to questions of law). In reaching the
verdict and settling the question of guilt or innocence, the jury is limited to
and must draw inferences from the material provided by the parties. The role of
a judge is one of an umpire or a relatively silent referee who leaves the
parties to choose the battleground, applies the procedural rules and explains
the substantive principle of law to the jurors.
Some of the due process protections already discussed apply equally to the trial stage (right to privacy, right to counsel, privilege against self-incrimination). Among the other trial due process protections available to the criminal defendant are the following:
Right to Speedy and
Public Trial
Protection Against
Double Jeopardy
Right to Confront
Adverse Witnesses
The
defendant's right to trial is fundamental one. No person shall be convicted of
a crime unless upon evidence produced at trial in a court of competent
jurisdiction.
The defendant has a right to be
present at every stage of his trial. However, he can lose his right if he
conducts himself in a manner that is so disorderly that the judge has no
alternative but to order him out of the courtroom.
All the evidence in the case
must be presented in a court under the direction of the judge who administers
law of evidence.
Defendant may waive his right
to trial by pleading guilty to the charge against him, as long as such a waiver
is voluntary, intelligent and with full understanding of its consequences.
RIGHT TO SPEEDY AND PUBLIC TRIAL
Speedy Trial
One of the
most important premises of the American criminal justice system is that justice
delayed is the justice denied. A speedy trial is necessary in a system that
places fairness above anything else. Expeditious trial essentially promotes
fairness.
A speedy trial
is one that is free from unnecessary delay. The Sixth
Amendment right to speedy trial applies after a person becomes an accused,
i.e. when he/she is formally charged with a crime or placed under arrest and
detained to answer to criminal charges.
It should be noted that speed per se is not an end
in itself. Excessively speedy trial may equally violate the defendant's right
to fair trial. Therefore, a determination whether trial is reasonably speedy or
not must be made on case-by-case basis.
Violation of the constitutional right to a speedy
trial is not established by delay alone. Instead, the determination of whether
a case must be dismissed for lack of speedy trial requires a balancing test.
The conduct of both the prosecution and the defense is examined and the
following factors are considered: (1) length of delay, (2) reason for delay,
(3) defendant's assertion or nonassertion of rights, and (4) prejudice to the
defendant.
Public Trial
American law requires that all trials be held in
public view. This
Sixth Amendment right emphasizes the premise that it is important to do
justice to the defendant, but even more important is that justice is seen to be
done. While satisfying a community's need for justice, an open trial can help
insure a fair process and promote a sense of reassurance. Also, it can have
general deterrent effect. Seeing the publicized end results of a criminal act
can serve to dissuade others tempted to step outside the law.
The right to a public trial, however, is not an
absolute right. The judge has considerable discretion in excluding some people
from the courtroom, in closing the doors to avoid overcrowding or in the
interest of public health, or to exclude disorderly people or to bar minors in
cases in which testimony is given that youngsters ought not to listen to.
Juveniles have no constitutional right to a public
trial. Many states provide for closed juvenile adjudication proceedings and
either limit or prohibit press reports. These practices are justified by the
concept of parens patriae (a doctrine by which the government supervises
children or other persons who suffer from legal disability), which diminishes
the constitutional right of juveniles and protects them from unnecessary public
exposure.
By the time the United States
Constitution and the Bill of Rights were drafted and ratified, the institution
of trial by jury was almost universally revered, so revered that its history
had been traced back to Magna Carta. The jury began in the form of a grand or
presentment jury with the role of inquest and was started by Frankish
conquerors to discover the King's rights. Henry II regularized this type of
proceeding to establish royal control over the machinery of justice, first in
civil trials and then in criminal trials. Trial by petit jury was not employed
at least until the reign of Henry III, in which the jury was first essentially
a body of witnesses, called for their knowledge of the case; not until the
reign of Henry VI did it become the trier of evidence. It was during the
Seventeenth Century that the jury emerged as a safeguard for the criminally
accused. The right was guaranteed in the constitutions of the original 13
States. It was guaranteed in the body of the Constitution (article III,
Section 2, Clause 3 of the Constitution provides that "The Trial of all
Crimes, except in cases of Impeachment, shall be by Jury.”) and in the
Sixth Amendment, which provides:
"In all criminal prosecutions, the accused shall enjoy the right to speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed." It was guaranteed in the constitution of every State entering the Union thereafter in
one form or another protected the right to jury trial in criminal cases.
''The guarantees of jury trial
in the Federal and State Constitutions reflect a profound judgment about the
way in which law should be enforced and justice administered. A right to jury
trial is granted to criminal defendants in order to prevent oppression by the
Government. Those who wrote American constitutions knew from history and
experience that it was necessary to protect against unfounded criminal charges
brought to eliminate enemies and against judges too responsive to the voice of
higher authority. The framers of the constitutions strove to create an
independent judiciary but insisted upon further protection against arbitrary
action. Providing an accused with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt overzealous prosecutor
and against the compliant, biased, or eccentric judge. . . .
It was previously the position
of the Court that the right to a jury trial meant ''a trial by jury as
understood and applied at common law, and includes all the essential elements
as they were recognized in this country and England when the Constitution was
adopted.'' It had therefore been held that this included trial by a jury of 12
persons who must reach a unanimous verdict. However, as it extended the
guarantee to the States, the Court indicated that at least some of these
standards were open to re-examination, and in subsequent cases it has done so.
In Williams v. Florida, the Court held that the fixing of jury size at 12 was
''a historical accident'' which, while firmly established when the Sixth
Amendment was proposed and ratified, was not required as an attribute of the
jury system, either as a matter of common-law background or by any ascertainment
of the intent of the framers. Being bound neither by history nor framers'
intent, the Court thought the ''relevant inquiry . . . must be the function
that the particular feature performs and its relation to the purposes of the
jury trial.'' The size of the jury, the Court continued, bore no discernable
relationship to the purposes of jury trial--the prevention of oppression and
the reliability of factfinding. Furthermore, there was little reason to believe
that any great advantage accrued to the defendant by having a jury composed of
12 rather than six, which was, according to the Court the minimum number in
states. A jury should be large enough to promote group deliberation and be free
from outside attempts at intimidation. In addition, the Supreme
Court requires that trial juries be selected at random from fair cross-section
of the community in the district. It means that the jury cannot be consciously
restricted to a particular group. Exclusion of person because of race, color,
gender, or national origin has been held invalid.
Although the Sixth Amendment
provision does not differentiate among types of criminal proceedings in which
the right to a jury trial is or is not present, the Supreme Court has always excluded
petty offenses from the guarantee in federal courts, defining the line between
petty and serious offenses either by the maximum punishment available or by the
nature of the offense. This line has been adhered to in the application of the
Sixth Amendment to the States and the Court has now held ''that no offense can
be deemed 'petty' for purposes of the right to trial by jury where imprisonment
for more than six months is authorized.'' A defendant who is prosecuted in a
single proceeding for multiple petty offenses, however, does not have a
constitutional right to a jury trial, even if the aggregate of sentences
authorized for the offense exceeds six months.
The Supreme Court requires that trial juries be selected at random from fair cross-section of the community in the district. It means that the jury cannot be consciously restricted to a particular group. Exclusion of person because of race, color, gender, or national origin has been held invalid.
Defendant may waive his right to jury trial and have his case be decided by the judge alone in what is known as bench trial. However, in some states, for this waiver to produce such effect, it has to be consented to by the prosecutor, because the law provides that the state is entitled to the same right to jury trial as is the defendant.
Trial by Jury vs. Trial by Judge
The due
process clauses of the Fifth
and Fourteenth
Amendments guarantee the accused the right to fair trial by an impartial
jury. What this guarantee basically means is that circumstances surrounding the
trial must not be such that they unduly influence the jury. Undue influence
usually has the form of publicity so massive that it becomes prejudicial to the
accused.
In order to
control prejudicial publicity during trial, the judge has the power to order
the following steps:
Change of the place (venue) of trial
to another county or state,
Sequestration (keeping jurors together
during trial and strictly controlling contact with outside world),
Issuance of a "gag rule,"
which prohibits the parties in the trial from releasing information to the
press or saying anything in public about the trial.
Where it is found that there was excessive adverse
pre-trial and trial publicity, any conviction so secured shall be deemed
violation of due process of law.Successful appeal of such conviction may result
in action of the appellate court to modify or set aside the decision of the
trial court.
PROTECTION AGAINST DOUBLE JEOPARDY
The Fifth
Amendment provides that a person who has committed a criminal act can be
subjected to only one prosecution or punishment for the same offense. Double
jeopardy is defined as the successive prosecution of a defendant for the same
offense by the same jurisdiction.
When a defendant has been prosecuted for a
criminal offense and the prosecution has resulted in either a conviction or an
acquittal, or the proceeding has resulted in dismissal equivalent to an
acquittal, any further prosecution or punishment is prohibited. This principle
protects people form being harassed by successive prosecution for a single
wrongful act and from being punished twice for the same offense.
Under the prevailing American case law, the double
jeopardy protection is not violated when any of the following practices occurs:
when the defendant moves for mistrial because of what the prosecutor or a
witness has done, and the motion is granted by the judge; and when the
defendant is asking for a new trial by appealing a guilty verdict.
Double jeopardy applies only to prosecution for
the "same offense." Two offenses are the same if they come under the
"same elements" test. This test looks into whether one offense
contains the same elements as the other. If it does. Then double jeopardy
applies.
Double jeopardy does not apply to different jurisdictions. Since
every American citizen owes allegiance to two sovereignties - the federal and
state governments - and therefore may be liable for punishment for violation of
criminal laws of either, it follows that a person may be prosecuted both by the
federal government and by the state government for same offense. Similarly,
there is no violation of double jeopardy if a person is tried by the courts of
two states when the offense was committed in both states in violation of the
laws of both states.
Like most of the other personal rights that the
law grants him or her, the defendant may waive the protection against double
jeopardy. It may be waived expressly or by implication from one of the
following acts: the defendant's failure to claim it before trial; when the
defendant files a motion to the trial court to set aside the verdict against
him or her; and when the defendant himself appeals the judgment.
RIGHT TO CONFRONT ADVERSE WITNESSES
An adversary
trial is meaningless unless the defendant has the right to confront and
cross-examine adverse witnesses. Rational for the right is the premise that it
is more difficult to tell the lies directly to someone's face than behind his
back. In recognition of this fundamental aspect of the American accusatorial
system, the
Sixth Amendment provides that "in all criminal prosecutions the
accused shall enjoy the right ..... to be confronted with the witnesses against
him."
The right to confrontation exists in all criminal
proceedings, including trials, preliminary hearings, and juvenile proceedings
in which the juvenile is suspected of having committed a crime.
The right to confrontation includes the following
rights: (1) right to cross-examine opposing witnesses, which is critical to the
defense in detecting and exposing any falsehood or inaccuracy; (2) right to be
physically present in the courtroom at the time of testimony against him or her
is offered; and (3) right to know the identity of prosecution witnesses, which
may be crucial to the defense in investigating and cross-examining witness for
possible impeachment.
The defendant may waive his right to confront
adverse witnesses provided he or she does so voluntarily and intelligently.
Ancillary to this right is the defendant's right
to have compulsory process for obtaining witness in his favor. The right to
obtain witnesses includes (1) the power to compel the appearance of witnesses
(subpoena), and (2) the right to present a defense, which in turn includes the
defendant's right to present his or her own witnesses and his or her own
version of the facts. The essence of this principle is that the defendant is
given the same right as the prosecutor to present witnesses in criminal
proceedings.
Since the
trial is the heart of the criminal procedure, it is essential that the governor
of the trial should himself be impartial.
The phrase
"unbiased judge" was never used in the U.S.
Constitution, but the defendant's right to an unbiased judge flows out of the
due process clauses of the Fifth
and Fourteenth
Amendments.
Statutory law provides that any justice or judge
must disqualify himself in a case in which he has a substantial interest, or
has been a counsel, or has been a witness, or is so related to or connected
with any party or his/her attorney as to render it improper for him to sit on
the trial or any other proceeding.