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 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:
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.
Article III, Section 2, Clause 3 of the the Constitution provides that "The Trial of all Crimes, except in cases of Impeachment, shall be by Jury." The Sixth Amendment also 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."
The right to trial by jury has been interpreted by the United States Supreme Court to mean that in all criminal prosecutions where possible punishment is imprisonment for more than six months the defendant has a constitutional right to trial by jury.
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.
In criminal trials in federal courts, federal law requires jury of 12. In the state criminal trials, state law may provide for juries with fewer than 12, but not less than 6 members.
Under federal law, verdict of the jury must be unanimous and it must be returned by the jury in the open court. State law may accept less than unanimous verdict in misdemeanor cases or in non-capital cases.
Defendant may waive his right to jury trial, including capital offenses, as long as the waiver is based on the defendant's express and intelligent consent, and as long as the waiver is consented to by both prosecutor and the trial 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.
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.