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As such, the courts exist to counteract the power of the legislature and the executive and to ensure that they abide by the Bill of Rights and other Constitutional protections available. Perhaps an example will best illustrate the broader political implications inherent in every American criminal trial. The Fourth Amendment of the Bill of Rights provides that the citizens shall be free of "unreasonable search and seizure.
If, for reasons of necessity, a search warrant is not first obtained from the court, then evidence deriving from an "unreasonable" police search will not be allowed into evidence This has resulted in many acquittals of person obviously guilty of a crime. Typically, a person is found with illegal drugs but if those drugs were found by the police in an illegal search, the drugs cannot be admitted into evidence and the State can not prove its case. This strikes may people from abroad What is vital to note is that it is a political decision that has been made: put succinctly, the state has determined that protection of people from unreasonable search is more important than the occasional release of a guilty person.
Only by understanding the unique political role of criminal law in America can one understand the oddities of this system which seeks to protect society while at the same time safeguarding the rights of the individual accused of crime. The writer well remembers an Italian movie seen thirty years ago in which the police in an Italian city were beating an accused who gasped that he wanted to see his lawyer.
When the government seeks to protect the peace or safety of its citizens and determines that punishment by imprisonment, fine or death is appropriate to ensure such peace and safety, then it provides for such punishments in the law it passes and that law is considered part of the criminal law also known as the Penal Code. The key aspect is that the State itself seeks to enforce the law against an individual party and that imprisonment, fines or other forms of state sponsored punishment are imposed if the State prevails. The same act may give rise to both criminal and civil liability.
Thus, the State may determine that driving under the influence of an intoxicating liquor is sufficient danger to society that if one is found guilty of driving while intoxicated one faces fines and possible imprisonment. That same act, however, could result in a civil suit being filed by an individual harmed due to the "drunk driving" in which the State would not be directly involved. For example, a drunk driver hits and injures an individual. The State shall seek to imprison or fine the accused and the person injured will probably file a separate action to seek monetary damages against the individual.
See our web article on Torts: Negligent and Intentional. Another example is fraud, which may be a crime to be punished by the State and also a cause of action brought by the individual defrauded seeking to obtain compensation for the harm caused.
It is to be noted that the individual may not bring his or her action in conjunction with the criminal case: unlike much of the world, the criminal trial only allows the state versus the accused and individuals who are victims of the crime seeking compensation must bring a separate civil action. It is also to be noted that the criminal trial is remarkably different from a civil trial.
The reader is directed to the web article The American System of Litigation for a description of the methods and tools available in a civil trial. The criminal trial proceeds with entirely different procedures; for example limited discovery in a criminal case is available to the defense but almost no discovery is available to the State due to the Constitutional right not to incriminate oneself the Fifth Amendment of the Bill of Rights prohibiting the government from seeking to force the defendant to produce any incriminating evidence.
This right leads to other differences: in a civil trial one can call any witness, including your opponent, but in a criminal trial, the government may not call the accused to the stand to be cross examined, again due to the Fifth Amendment right against self incrimination.
The reader is directed to the web article The American System of Litigation for a description of the methods and tools available in a civil trial. An overview of the court is followed by discussions of prosecution and defense, pretrial processes, trial and posttrial processes, and punishment and sentencing. Crime portal. It should also be recalled that the defendant need not take the stand to testify and cannot be forced to testify by either the court or the district attorney. However, if the matter charged is a felony, namely a serious crime, then in California and most states there is a preliminary hearing before the case is set for trial and at that preliminary hearing the State must present sufficient evidence to show the Court that there is reason to believe that a crime has been committed before a trial can be set in the Superior Court.
However, if the defendant voluntarily takes the stand to present his or her side of the story, the government is then allowed to cross examine the defendant as long as it wishes. Recall that O. Simpson did not take the stand to defend himself and the State could not force him to testify.
Another difference lies in the proof needed to win your case. The burden of proof in a civil matter is that the plaintiff must prove its case by a preponderance of the evidence "more likely than not" and need not get a unanimous verdict. In a criminal trial, as already discussed, the government must prove its case by a unanimous verdict in most courts and must prove it s case beyond a reasonable doubt to a moral certainty , a much higher burden. Which is why O.
Simpson was found not guilty We thus have two entirely different systems of statutes and procedures in the criminal and civil courts with the citizens being relegated to enforce their various rights against each other in the civil courts under the various Civil Codes, while the government seeks to enforce its Penal Code entirely in the criminal courts.
Most individuals enter the criminal system when they are arrested or hear that a warrant for their arrest has been issued and turn themselves in. The right to be released before trial is a vital one in the United States, as is the right to a speedy trial so that one does not languish in jail awaiting trial. Unless a person is determined by the court to be a danger to society or there is good evidence that the accused will disappear before trial, the court is required to release the accused either without bail on his or her " own recognizance or by positing an amount of money " bail " with the clerk of the court as security that will be forfeited if the person fails to appear for court.
Most first offenders or those accused of minor crimes " misdemeanors " are released on own recognizance " OR " within a few hours of arrest. Those accused of more serious crimes "felonies" may have to post bail or may even be denied the right to bail. The latter normally only occurs in truly major crimes, most usually involving violence to others or massive sums of money stolen.
Bail can range from a few hundred dollars to hundreds of thousands, depending on whether the judge feels there is a substantial risk of flight. The accused can either post his or her own money for bail, or can go to a bail bondsmen who, for ten percent fee and with some type of security pledged by the accused or his or her family, will post bail after obtaining such security. Thus, one hundred thousand dollar bail will normally cost the accused ten thousand dollars to the bail bondsman. Bail bonds offices surround the various jails and are usually open day or night.
Once arrested, the accused is normally brought before the judge for a bail hearing within a few hours, but if one is unlucky and arrested on a weekend or very late at night, one may not have the bail hearing for many hours or even a day. One is normally allowed a telephone call from the jail after one is "booked" which means after the police establish a record of the arrest, take fingerprints, etc.
One has the right to legal counsel at any questioning that occurs in which one is considered possibly to be arrested. If one asks for counsel, all questioning must cease until your legal counsel is selected and present.
Most police departments give a warning the "Miranda warning" named after the case which limited the right to question and the warning states that the accused need not answer any questions, has a right to counsel to be present, and that if that person cannot afford counsel, one will be appointed by the court. A common mistake made by the accused is to feel that that the entire arrest is merely a mistake and that if he or she can only explain the situation to the police or an official, the entire matter will be "forgotten.
Obtain legal counsel as soon as you can and do not volunteer information until you have received good legal advice. As they say in the movies, anything you say can and will be used against you and once arrested it is very seldom for a matter to be dismissed prior to a full scale hearing once booking is made. One must also assume that any conversations outside the presence of your legal counsel may be subject to electronic scrutiny thus discussing the case with any persons while incarcerated is foolish, indeed. The prisoner sharing your cell or your meal times is not your friend and is as likely to buy his or her freedom by testifying against you as not.
Volunteer nothing in any conversation outside the presence of legal counsel. Be courteous, be cooperative, but say nothing except you wish to have legal counsel present. One has a right to seek a hearing to reduce bail if bail was set that is too high. The court considers the type of crime alleged to have been committed; your ties to the community that would indicate you are unlikely to flee; and your prior record in determining if bail should be set and the amount.
Thus, a person accused of theft who has a family and regular job in the community and no record is going to face a small bail or OR while a third time convicted felon accused of assault and battery who was recently out of prison will face high bail or none at all. Whether bailed out or not, the law requires the Court to promptly have a hearing in which the accused is made aware of the charge against him or her. At the first hearing in the Court a charge will be read by the judge and the accused will be asked to enter a plea of guilty or not guilty.
That hearing is called an Arraignment and it often occurs before the accused has had a chance to obtain legal counsel. If such is the case, the court will grant a continuance or enter a plea of not guilty and ask the accused to return on a particular date with legal counsel. If the accused advises the court that he or she can not afford private counsel, the court will direct them to the public defenders office. Quite often a public defender is permanently assigned to the court room and he or she will discuss the matter with accused and make an appointment to obtain the public defender who will represent the accused.
If the person accused wishes to plead guilty, the court is usually reluctant to accept such a plea before the defendant has had a chance to consult with legal counsel. If the defendant insists, the court will either set another hearing date or will ask the defendant a long series of questions making the accused understand what rights being waived if a guilty plea is entered. Very, very few people plead guilty at this stage since even if they intend to plead guilty called " pleading out " , they need to negotiate with the district attorney as to fines or length of jail time before giving up their rights.
See below.
giuliettasprint.konfer.eu: The American System of Criminal Justice (): George F. Cole, Christopher E. Smith, Christina DeJong: Books. The American System of Criminal Justice [George F. Cole, Christopher E. Smith, Christina DeJong] on giuliettasprint.konfer.eu *FREE* shipping on qualifying offers.
If the crime alleged is a relatively minor one, a misdemeanor, then a trial date is set at the arraignment, usually preceded by a court date to discuss resolving the matter by pleading out to a lesser offense. The trial must be set within a short period of time due to the Constitutional right to a speedy trial and most states require the trial to be heard within two to four months or the State will face having the entire case dismissed. Often the defendant will want additional time to prepare so will waive the right to a speedy trial.
If the crime charged is relatively minor, it is termed a misdemeanor and the court will set a trial date and pretrial hearing to discus settlement at the arraignment. However, if the matter charged is a felony, namely a serious crime, then in California and most states there is a preliminary hearing before the case is set for trial and at that preliminary hearing the State must present sufficient evidence to show the Court that there is reason to believe that a crime has been committed before a trial can be set in the Superior Court. This is the chance for defense counsel to cross examine the key witnesses of the State and often is the best discovery allowed the defense in a criminal matter.
In criminal cases, there are no depositions or interrogatories allowed either side, unlike a civil trial. While the court at a preliminary hearing is allowed to dismiss the matter if the court determines that the State does not have sufficient evidence to send the matter to trial, or to reduce the charges to a less serious crime, in reality very, very few cases are so dismissed or reduced in charge: almost all are set for trial in the Superior Court, thus the preliminary hearings is normally seen by the defense counsel as a chance to investigate the State's witnesses under oath while at the same time, to reduce being forced to give away the case, most district attorneys put on the least case they can while still convincing the court to send the matter to trial in Superior Court.
Assuming the Court feels there is sufficient evidence to " hold to answer " the legal term for being sent to Superior Court for trial the defendant will be assigned a date for trial in Superior Court usually a few months away.
Alternatively, the Court can conclude that the evidence warrants a lesser charge, one that should be tried in municipal court, and send the matter to trial there. A transcript is made of the preliminary hearing and the testimony taken there is often very valuable for the defense counsel in preparing the defense case.
While defendants are free to call their own witnesses at the preliminary hearing, it is seldom done. The burden of proof is so low to hold the defendant to answer that unless the defense feels the case is overwhelmingly in favor of the defendant, the defense will waive the right to call witnesses. This also relates to the discovery issue of a criminal case. While the defendant does not have to deliver to the district attorney documents and the like in the sole possession of the defendant since there is a right not to incriminate oneself Fifth Amendment while no such rights protect the State.
Indeed, the district attorney is required to deliver to defendants any relevant evidence and list of witnesses. Some courts have required the defendants to deliver some evidence, such as a list of witnesses, but the discovery allowed the State is very, very limited in all instances.