Friday, February 1, 2013

WINNING A JURY TRIAL,,,WIZARDOFBAUM


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California Criminal Jury Trials: How it Works

In California, all persons charged withmisdemeanors and/or felonies are entitled to a jury trial.1 But it's not enough to exercise your right to a jury trial...what's really important is to exercise your right to a fair trial.
In order to ensure that you are exercising that right, it is essential that you have a criminal defense attorney who not only specializes in California criminal defense but who has a thorough understanding of California's criminal jury trial process.
And that's where we come in. As a law firm comprised of former prosecutors and cops, we know the system inside and out. As a result, we know the most effective ways to help you secure an acquittal. Below, our Californiacriminal defense attorneys2 address the following:

1. Overview

2. The Anatomy of a California Criminal Jury
    Trial

3. Additional Proceedings That May Take Place
    During a Jury Trial

Plaque outside Compton Courthouse.
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California's Arraignment Process; Pretrial Proceedings; Mentally Disordered Offender "MDO" Commitment Hearings; Sexually Violent Predator "SVP" Hearings; Motion for a New Trial; and California Sentencing Hearings.

1. Overview

If, at the time of your California arraignment, you enter a "not guilty" plea, you will thereafter engage in a number of pretrial proceedings that are designed to resolve the case...usually by way of a plea bargain. However, if you maintain your "not guilty" plea, you will ultimately proceed to trial. Most likely, that trial will be a jury trial.
The jury in a California criminal jury trial is comprised of twelve members who represent a "cross section" of the community in which the charged offense was committed. And before the jury can convict you, this "jury of your peers" must unanimously agree that you are guilty "beyond a reasonable doubt"...which is defined as a moral certainty.3
The right to a jury trial isn't a right that only extends to defendants who are accused of committing misdemeanor or felony offenses. It is a right that also extends to (1) the prosecution,4 and (2) a variety of additional proceedings. These include (but are not limited to):


In addition, the right to a jury trial extends to any allegations that may affect the sentence or enhance the penalty (for example, proving prior convictions and/or death penalty proceedings).8

2. The Anatomy of a California Criminal Jury Trial

California jury trials can be broken down into a number of phases, and each phase of the trial has its own rules and regulations. Typically, a jury trial proceeds as follows:

  • jury selection,


  • opening statements,


  • evidence (also known as the prosecution and defense "cases in chief" which includes the examination and cross-examination of witnesses by both sides),


  • closing arguments,


  • jury deliberations,


  • verdict, and finally, if necessary,


  • sentencing.9

Let's take a closer look at each of these stages in order to gain a better understanding of California jury trials as a whole.

Jury selection

Jury selection, not surprisingly, is the process by which a jury is chosen. During jury selection, the defense attorney and prosecutor ask prospective jury members questions (known as the "voir dire") in an effort to determine who will comprise the most favorable jury.
During this process, the parties attempt to find twelve jurors (and sometimes alternate jurors)10 on which they agree. An important part of jury selection involves asking the court to dismiss certain candidates. The attorneys make this request either (1) for cause, or (2) through the use of a peremptory challenge.
If the attorney asks the court to dismiss a prospective juror "for cause", it means that the individual has expressed a bias and is not suitable to decide the case (for example, the juror may have stated that...based on religious reasons...she can't pass judgment on the defendant). Lawyers are permitted an unlimited amount of these challenges.
If the attorney exercises a "peremptory challenge", the attorney does not need to state the reason why he/she dismissed that individual. Each attorney is allowed between six and twenty peremptory challenges, depending on the alleged offenses.11
There is an important point to address with respect to peremptory challenges.
An attorney may not excuse prospective jurors based on their race, religion, ethnicity, etc. If he/she is suspected of doing so on a systematic basis, the opposing attorney will likely file what is known as a "Wheeler motion".12 If granted, the entire jury panel will be dismissed, and a new panel will be ordered and questioned.13
Once twelve jurors have been selected, the attorneys make their opening statements.

Opening statements

As Rancho Cucamonga criminal defense attorney Michael Scafiddi14 explains, "Opening statements give the jury a road map of what the attorneys expect the evidence to prove. During opening statements, the attorneys are not permitted to introduce evidence. They are, however, allowed to offer a ‘preview of coming attractions.'"
Depending on the circumstances of the offense(s), opening statements may be brief or quite detailed. The judge may also set time limits on the attorneys' opening statements.
The prosecution goes first. If the defense wishes to make an opening statement (which it typically does), it follows.

The case in chief

This is the "bulk" of the California criminal jury trial...that is, the segment where each side introduces its evidence. Attorneys do not personally introduce evidence. They do so through witness testimony, documents, photos, etc. For the most part, witnesses are only allowed to testify to matters that are within their personal knowledge.
After the attorney examines each witness, the other side's attorney is given an opportunity to cross-examine the witness.
This process (referred to as "re-direct" and "re-cross") continues until the attorneys have no further questions. But in order to ensure that this process doesn't continue indefinitely, each side is limited to questioning the witness exclusively about issues which the previous attorney raised.
However, this limitation only kicks in after both attorneys have had one full opportunity to inquire about any testimony that they wish.

Closing arguments

After all the evidence has been submitted, the attorneys engage in their closing arguments. During this phase of the California criminal jury trial process, the attorneys recap the evidence in a way that is most favorable to their client.
The lawyers are not permitted to comment on evidence that was not introduced during the trial or to misstate the law.15
The prosecution gives his/her closing argument first, followed by the defense. The prosecution then gets a last opportunity to rebut the defense's argument. This final argument is usually much shorter in duration than the first two.

Jury deliberations

After the attorneys present their closing arguments, the case "goes to the jury". The judge and attorneys review all the applicable jury instructions to determine which ones the judge should read to the jury.
Once the judge has read all the applicable instructions, the jury begins their deliberations. The jury designates a "foreperson" to guide the jury in their deliberations. The jury is supposed to debate the case until they unanimously reach a guilty or not guilty verdict.
The jury may ask the judge...in the presence of the attorneys

  • questions about the case,


  • to rehear specific testimony,


  • to view the scene of the incident, etc.,

but may not consider evidence outside the "record". They are also prohibited from speaking or otherwise communicating with people outside the jury about the case.16
In rare circumstances, the judge will sequester the jury, which means that they will not have contact with anyone other than themselves for the duration of the deliberations.
Once the jury reaches its verdict...or has deliberated the case to the point that the judge believes there is no further point in trying...deliberations end.17

The verdict

If the jury unanimously finds the defendant "not guilty" on all charges, the case is dismissed, and the defendant goes free.
If even one member of the jury panel disagrees with the rest, the jury is hung. A "hung jury" results in either (1) a mistrial (which means the case may be retried with a new jury), (2) a plea bargain to a reduced charge that carries a lesser sentence, or (3) a dismissal of the case.
If the jury unanimously finds the defendant guilty on one or more charges, the defendant proceeds to a sentencing hearing on those counts unless the judge grants the defendant's motion for a new trial (which is done for a variety of reasons when, simply put, the verdict is against the law).

The sentencing hearing

If the defendant is convicted of any charge, he/she is entitled to a sentencing hearing. A California sentencing hearing is an opportunity for both the defense and prosecution to make a "pitch" to the judge as to what they believe the defendant's sentence should be.
The defense attorney presents mitigating factors, and the prosecution presents aggravating factors. After listening to both sides, the judge ultimately determines the exact sentence, within the framework of what is legally permissible.
"A trial can be like a great movie. It keeps the audience on the edge of their seats. They will laugh and cry and feel changed by the experience. But in the end this drama is different from anything coming out of Hollywood. This is a drama where the audience gets to write the ending."
-- California Criminal Defense Attorney Michael Scafiddi

3. Additional Proceedings That May Take Place
    During a California Criminal Jury Trial

Depending on the circumstances of the case, there may be additional motions and/or plea negotiations that take place throughout the trial as well. Some of the most common include (but are by no means limited to):

  • standard objections to evidence / testimony,


  • motions to exclude evidence (these motions apply to a number of different issues that range anywhere from excluding newly discovered evidence to excluding coerced confessions to excluding unnecessarily gruesome photos to excluding the sexual conduct of a sex crime victim),


  • motions to exclude witnesses from the courtroom,


  • motions to discharge jurors (this, too, could be for any number of reasons, such as juror misconduct, a juror becomes ill, a juror is inattentive or falls asleep during the trial, or a juror has an unusually emotional reaction to the evidence),18


  • challenges to expert testimony (for example, the expert is testifying to matters beyond his/her expertise, the basis for the opinion is improper, and/or the testimony will confuse the issues and mislead the jury), and


  • motion for acquittal (commonly referred to as a Penal Code 1118.1 motion), which the judge may consider on his/her own or at the request of the defense


  1. at the close of evidence of either side, or


  2. just prior to jury deliberations.

The premise of a motion for acquittal is that the prosecution hasn't sustained its burden of proof as to one or more elements of the crime.19

And regarding court (or "bench") trials...

It should finally be noted that you have the right to waive a California criminal jury trial and instead to allow the judge to decide the outcome of your case.20 This is what's known as a bench trial or a court trial. However, because the right to a jury trial is so deeply embedded in our Constitution, the defense attorney and the prosecutor must both agree to this waiver.21
For the most part, the procedures for both jury trials and bench trials are the same, although bench trials may be a little less formal and considerably shorter (since there is no jury selection process or oral reading of the jury instructions).
Depending on the circumstances of your case, this may be a strategically advantageous option that you may wish to discuss with your attorney.

Call us for help...

For questions about California jury trials, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.22
To learn about Nevada jury trials, go to our page on Nevada jury trials.

Legal References:


1Your right to a California jury trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution, by the California Constitution Article 1, sections 16 and 24, and by various California statutory provisions.
2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3California Constitution Article 1, section 16. ("Sec. 16. Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court. In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.")
See also California Jury Instructions, Criminal (CALJIC 2.90) -- Presumption of Innocence—Reasonable Doubt—Burden of Proof. ("A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.")
4People v. King (1970) 1 Cal.3d 791, 795. ("After entering his guilty plea, defendant indicated that he wished to waive a [California criminal] jury trial on the issue of penalty. The prosecutor refused to join in the waiver, and defendant moved that he nevertheless be permitted to waive a jury trial. The motion was denied, and defendant contends that the court thereby erred. We do not agree.")
5Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764. ("The final version of Senate Bill No. 95, which included the modification of [Health and Safety code] section 11357 [California's misdemeanor possession of marijuana law], provided that unlawful simple possession of less than one ounce of marijuana is amisdemeanor punishable by a fine of not more than $100. That this change was deliberately made to settle how the offense would be classified clearly appears from the section's other provisions with respect to jury trial...[and at 766]...A person charged with a misdemeanor is entitled to the assistance of court-appointed counsel (Pen. Code, § 686) and to a trial by jury (Pen. Code, § 689).")
6California Penal Code 2972 PC -- Hearing on petition for continued treatment; jury trial...("(a) The court shall conduct a hearing on the petition under Section 2970 for continued treatment [that is, a Mentally Disordered Offender "MDO" commitment hearing]. The court shall advise the person of his or her right to be represented by an attorney and of the right to a [California] jury trial. The attorney for the person shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable. The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney. The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown.")
7California Welfare and Institutions Code 6603 -- Trial by jury...(a) A person subject to this article [that is, a person subject to a Sexually Violent Predator "SVP" commitment hearing] shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. Any right that may exist under this section to request DNA testing on prior cases shall be made in conformity with Section 1405 of the Penal Code.")
8People v. Guzman (1988) 45 Cal.3d 915, 968 overruled on other grounds. ("As noted above, defendant received a 37 1/2-year prison sentence in addition to the death sentence. Ten years of that sentence resulted from defendant's admission at the close of the prosecution's case-in-chief that he had suffered two prior rape convictions, for each of which he had served a state prison term. (§ 667.5, subd. (c).) He asserts the judgment must be modified to strike the 10-year enhancement because, he notes, the trial court did not expressly advise him of his right to a jury trial on the issue of the priors...The law is well settled that before an accused can validly admit a prior felony conviction, he must be advised of, and waive, his rights to a [California criminal] jury trial, confrontation, and his rights against self-incrimination as to the prior conviction, and he must also be advised of the legal consequences of his admission.")
See also Ring v. Arizona (2002) 536 U.S. 584, 609. ("...our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury...The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.")
9California Penal Code 1093 PC -- Order of procedure in a California criminal jury trial; change of order; powers of judge to comment and to charge as to law. ("The jury having been impaneled and sworn, unless waived, the trial shall proceed in the following order, unless otherwise directed by the court: (a) If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with. (b) The district attorney, or other counsel for the people, may make an opening statement in support of the charge. Whether or not the district attorney, or other counsel for the people, makes an opening statement, the defendant or his or her counsel may then make an opening statement, or may reserve the making of an opening statement until after introduction of the evidence in support of the charge. (c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. (e) When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close. (f) The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.")
10California Penal Code 1093 PC -- Alternate jurors; cases in which authorized; drawing; qualifications; examination; challenges; seating; oath; attendance; duties; confinement; discharge; substitution of alternate for regular juror. ("Whenever, in the opinion of a judge of a superior court about to try a defendant against whom has been filed any indictment or information or complaint, the [California criminal jury] trial is likely to be a protracted one, the court may cause an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is impaneled and sworn, the court may direct the calling of one or more additional jurors, in its discretion, to be known as "alternate jurors." The alternate jurors must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges, provided that the prosecution and the defendant shall each be entitled to as many peremptory challenges to the alternate jurors as there are alternate jurors called. When two or more defendants are tried jointly each defendant shall be entitled to as many peremptory challenges to the alternate jurors as there are alternate jurors called. The prosecution shall be entitled to additional peremptory challenges equal to the number of all the additional separate challenges allowed the defendant or defendants to the alternate jurors. The alternate jurors shall be seated so as to have equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected, and must attend at all times upon the trial of the cause in company with the other jurors, and for a failure so to do are liable to be punished for contempt. They shall obey the orders of and be bound by the admonition of the court, upon each adjournment of the court; but if the regular jurors are ordered to be kept in the custody of the sheriff or marshal during the trial of the cause, the alternate jurors shall also be kept in confinement with the other jurors; and upon final submission of the case to the jury the alternate jurors shall be kept in the custody of the sheriff or marshal and shall not be discharged until the original jurors are discharged, except as hereinafter provided. If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.")
11California Code of Civil Procedure 231 -- Peremptory challenges; number; joint defendants; passing challenges. ("(a) In criminal cases, if the offense charged is punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 20 and the people to 20 peremptory challenges [during the California criminal jury trial]. Except as provided in subdivision (b), in a trial for any other offense, the defendant is entitled to 10 and the state to 10 peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to five additional challenges which may be exercised separately, and the people shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. (b) If the offense charged is punishable with a maximum term of imprisonment of 90 days or less, the defendant is entitled to six and the state to six peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to four additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants.")
12People v. Wheeler (1978) 22 Cal.3d 258
13People v. Smith (1993) 21 Cal.App.4th 342, 346. ("The Wheeler solution allows a prosecutor to push the limit and, if found to have gone too far, to have the slate wiped clean and start over with a new venire. But unless and until the United States Supreme Court mandates a contrary remedy, or the California Supreme Court changes its mind, we have no option but to follow the Wheeler remedy.")
14Rancho Cucamonga criminal defense attorney Michael Scafiddi represents clients at California criminal jury trials throughout the Inland Empire, including Banning, Barstow, Rancho Cucamonga, Hemet, Palm Springs, Riverside, and San Bernardino County.
15People v. Villa (1980) 109 Cal.App.3d 360, 364-365. ("The prosecutor's insinuations that he had in his possession as yet undisclosed but highly relevant and damaging evidence regarding Villa's prior sexual conduct clearly constituted misconduct...The Supreme Court held: "There is no doubt that the prosecutor's statement constituted improper argument, for he was attempting to smuggle in by inference claims that could not be argued openly and legally. In essence, the prosecutor invited the jury to speculate about-and possibly base a verdict upon-'evidence' never presented at trial.")
See also People v. Mendoza (2007) 42 Cal.4th 686, 702. ("Although counsel have "broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law.")
16California Penal Code 1138 PC -- Information for jury after retirement; return to court; notice to counsel. ("After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.")
See also People v. Honeycutt (1977) 20 Cal.3d 150, 157. ("In People v. Conkling, supra, 111 Cal. 616, 628, we stated that jurors cannot investigate the case outside the courtroom and that they must decide the guilt or innocence of a defendant based only on evidence introduced at [the California criminal jury] trial. It is equally manifest that we cannot condone a practice whereby a juror receives outside counseling relative to the applicable law, as to do so would subordinate the court's evaluation of the law to that of the juror's outside source and would be contrary to legislative directives that the court shall instruct on the applicable law (Pen. Code, § 1127) and maintain control of the proceedings (Pen. Code, § 1044).")
17California Penal Code 1140 PC -- Discharge of jury after submission; verdict; consent of parties; disagreement. ("Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.")
See also Penal Code 1160 PC -- Multiple defendants; multiple offenses charged; verdict and judgment as to some and disagreement and retrial as to others. ("...Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.")
18See California Penal Code 1093 PC, Discharging jurors during a California criminal jury trial, endnote 10, above.
19California Penal Code 1118.1 PC -- Trial by jury; entry of judgment of acquittal for insufficient evidence. ("In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.")
20California Constitution Article 1, section 16, endnote 3, above.
21See same. ("A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.")
22Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal jury trials or Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.
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THE COURTS PROCESS, SIMPLE EXPLANATION...WIZARDOFBAUM


Court process

A crime committed against a person violates state law and thus is a crime against the state. The prosecuting attorney for the county in which the crime occurred usually handles the case.
In a criminal case, the state has the burden of proving beyond a reasonable doubt that the defendant committed the alleged crime. Defendants are presumed innocent and never have the burden of proving their innocence.

INVESTIGATION

Law enforcement personnel investigate reports of criminal activity, gather evidence, make arrests, and present the evidence to the prosecuting attorney. Based on the investigation, police or the sheriff may decide that:
  • A crime has not occurred as defined under state law,
  • There is insufficient evidence to pursue the complaint, or
  • One or more persons may be arrested and the matter referred to the prosecutor.
Any person arrested must be released within 24 hours unless a warrant is issued for an arrest.

COMPLAINT AND ARREST

If police determine the evidence constitutes an offense and identifies a suspect, the matter is taken to the prosecuting attorney. As the legal representative for the state, the prosecuting or circuit attorney must then determine whether and what formal charges to file.
Once a charge has been filed, usually in the form of a complaint, the prosecutor can go to a judge to obtain an arrest warrant. The court issues the warrant if there are sufficient facts to show probable cause that a felony has been committed by the defendant. This warrant will allow local law enforcement officials to make an arrest.

TESTIFYING

During a felony trial, witnesses might have to testify at one or more of these three occasions:
  • At the preliminary hearing or before the grand jury
  • At trial
  • At sentencing
Victims may have to testify under oath:
  • At the preliminary hearing
  • At depositions
  • At hearings on pretrial motions, such as hearings on motions to suppress the victim’s identification of the defendant
  • At trial
  • At sentencing

PRELIMINARY HEARING

(Not held for misdemeanor cases)
Felony cases begin with a preliminary hearing — a proceeding in which testimony is taken under oath. The defendant may waive a preliminary hearing, and the case usually will be sent directly to circuit court for trial.
If the defendant chooses to proceed with a preliminary hearing, the judge, defendant, defendant’s attorney, prosecutor, and any victims or witnesses subpoenaed will attend.
The prosecutor presents evidence to show the judge that there is probable cause to believe a crime was committed and that it was committed by the defendant.
The defense attorney can cross-examine the state’s witnesses and produce evidence. If probable cause is established, the judge will order the defendant to be bound over for trial.
If the judge decides that probable cause has not been established, the court dismisses the case and the defendant is released. This also may occur if witnesses fail to appear to testify. In some cases the prosecutor can later file another complaint against the defendant, based on the same crime.
At any time, the prosecutor may decide to voluntarily dismiss the charges, called nolle prosequi.

GRAND JURY

A grand jury sometimes replaces the preliminary hearing as a method by which criminal charges can be filed. A grand jury is composed of a panel of private citizens, chosen similarly to trial juries, whose job is to look into allegations of criminal activity. Not every county has a grand jury.
The prosecutor presents evidence to the grand jurors who decide whether a crime was committed and if the defendant could have committed it. Proceedings are closed to the public, and the accused does not have the right to be present unless subpoenaed, and may not present evidence on his own behalf. The jury has the power to issue subpoenas to compel witnesses to testify or to produce documents and other evidence. As with a preliminary hearing, the case is bound over to the circuit court or the defendant is freed.

BAIL

A person charged with a bailable offense may be released pending trial on personal recognizance if the judge is assured the person will show up for court.
If a preliminary hearing is held and the defendant is bound over for trial, bail is discussed at that time. For grand jury indictments, bail is addressed at the defendant’s arraignment.
The judge may release the person on bail by imposing any number of conditions as specified under state law. Release on bail is not available for “capital offenses” where the accused is subject to punishment by death.

ARRAIGNMENT

This is the first formal presentation of charges to the defendant, who must enter a plea. Also, the judge can raise or lower the defendant’s bond. The arraignment is open to the public.
After arraignment, an assistant prosecuting or circuit attorney is assigned to the case (for larger prosecutor offices). In some cases, the same prosecutor will be assigned from the onset and the case is added to a judge's docket.
The court sets a trial date and hearing dates on pretrial motions. The trial date may change because of requests for continuances or because of other cases on the trial docket for that day.

PRETRIAL MATTERS

1. Discovery

Discovery is the process in which the state and defense can obtain information before trial. The discovery rules provide the defendant with sufficient information to make an informed plea, to encourage thorough trial preparation, to avoid surprises at trial, to conserve resources, and to expedite case processing.
Under the U.S. Constitution, the state must disclose evidence if there is a reasonable probability that the trial outcome would have been different if the evidence had been disclosed.
State law also requires disclosure of certain information. A defendant may obtain the deposition of any person. However in some circumstances, the prosecuting attorney may make a motion to exclude the defendant from the deposition of a child younger than 17 who has been victimized. Also, the trial court may issue special protective orders.

2. Plea Bargaining

Plea bargaining is the process in which the prosecution makes charging and sentencing concessions in exchange for a guilty plea. Among reasons the prosecution may avoid going to trial:
During the trial, don’t talk to the defendant or jurors. It is your decision whether you discuss the case with the defense attorneys.
  • To avoid further trauma to victims, such as a child who was sexually assaulted.
  • The victim, though prepared to testify, would prefer to end the case.
  • Evidence will support a conviction but other factors, such as issues of credibility, favor entering into a plea.
  • The defendant agrees to cooperate with the state in the prosecution of a codefendant.
Under Missouri law, the prosecutor may agree to:
  • Dismiss other charges.
  • Recommend or agree not to oppose the defendant’s request for a particular sentence.
  • Agree that the particular sentence is appropriate.
  • Recommend or agree on another case disposition.
The trial court is not required to accept a plea agreement, but if the court rejects the agreement, the defendant may withdraw his guilty plea. To be valid, the guilty plea must be entered “knowingly, intelligently, and voluntarily.”

3. Continuance

A criminal proceeding may be continued (or pushed to a later date) for what is referred to as “good cause shown.”

TRIAL

1. Noncapital cases

In all criminal cases, a trial may be held before a jury or, if the defendant does not want a jury trial, before a judge. Typically, jury-tried cases include a jury selection procedure (general voir dire), a guilt phase, and a sentencing phase. The jury may recommend a sentence. The judge sentences the defendant.

2. Capital cases

The state can seek the death penalty only in first-degree murder cases, which requires that the defendant acted with deliberation. Jury selection occurs in two phases. During the death qualification phase, the state and the defense may question prospective jurors about their views on capital punishment and whether they can consider the full range of punishment — life imprisonment without the possibility of probation or parole, or death. Prospective jurors can be struck for cause if their views would substantially affect their ability to perform. In the general phase, the parties may question jurors about their background, which aids in using peremptory challenges (removing for any reason).
The guilt phase then begins. As in all criminal cases, before presenting evidence, the prosecutor must make an opening statement, summarizing the evidence. The defense then may make an opening statement or may wait and make it before presenting its own evidence.
If the jury returns a guilty verdict, the penalty phase begins. Again, the prosecutor makes an opening statement; the defense may follow with one or present it at the beginning of its case. The state then presents evidence to establish beyond a reasonable doubt at least one aggravating circumstance to qualify for the death penalty. The defense can produce evidence in mitigation.

3. Presentence investigation (Sentencing Assessment Report)

Before sentencing, the state Board of Probation and Parole may investigate to determine if the defendant is eligible for probation and may make a recommendation to the judge. Victims are asked to make victim impact statements, describing how the crime has impacted their lives. They are included in the presentence investigation report.

4. Motion for new trial

A new trial may be granted upon “good cause shown” by the defendant. The motion for new trial must be filed within 10 days from the date of conviction. The trial court can grant a one-time extension of 15 days.

5. Sentencing

Sentencing, release

State law sets prison terms and fines. Multiple sentences run concurrently (at the same time) unless the court specifies them to run consecutively (one after the other). But for multiple offenses including rape, forcible rape, sodomy, forcible sodomy, or an attempt to commit any of those felonies, the sentence on the sexual offense must run consecutive to the other offense.
A defendant will receive credit for time served in jail or prison awaiting trial if the incarceration was not for time served on a different, unrelated offense.
The law also sets a conditional release term when a felon can be considered for release, unless he has committed a dangerous felony or previously has been sentenced to the state prisons. A dangerous felony includes first-degree arson, forcible rape and robbery; forcible sodomy; kidnapping; and second-degree murder; or the attempt of any of these.
A felon’s length of sentence determines how soon the state Board of Probation and Parole considers a conditional release. (See chart)
For each crime, the statute creating the offense specifies a range of punishment, such as five to 15 years’ imprisonment.
If the jury recommends a sentence for the defendant, the judge cannot increase the punishment but can reduce it. In some cases where the defendant has prior criminal convictions, only the judge considers punishment. The victim or family of a deceased victim has the right to be present and to make a statement at the sentencing hearing.
Offenders sentenced to one year or more are sent to prison. A lesser sentence generally is served in a county jail.
If a defendant is sentenced to imprisonment, that sentence will be stated in days or years, such as “fifteen years imprisonment.” However, the judge may suspend execution of the sentence and place the defendant on probation subject to conditions. Or the judge may decide not to sentence the defendant but to suspend imposition of sentence and place the offender on probation. The defendant also may be ordered to make restitution, to pay court courts, and to pay a fine.

CHALLENGES TO A CONVICTION, SENTENCE

1. Direct appeal

The state cannot appeal an acquittal of the defendant. If the defendant is found guilty, the defendant must appeal the decision within 10 days after the court officially pronounces the sentence. Appeals are heard by the Missouri Court of Appeals, unless a death sentence is imposed. Then the appeal goes directly to the Missouri Supreme Court.
The attorney general represents the state in all felony appeals. Any victim wanting to be informed of the appellate procedure and case status must make the request in writing to the Missouri Attorney General’s Office. A form is included on page 29 of the pdf version of this publication and can be sent directly or copied.
If the conviction and sentence are affirmed, the defendant can present to the U.S. Supreme Court federal constitutional claims in a petition for writ of certiorari, but such review is discretionary.
If a misdemeanor conviction is appealed, the prosecuting attorney for the county from which the conviction arose will represent the state.

2. Postconviction motions

Missouri Supreme Court Rule 24.035 and Rule 29.15 provide the only remedy for seeking postconviction relief from a judgment of conviction and sentence, alleging:
  • The violation of the constitution and laws of Missouri or the U.S. Constitution,
  • The sentence exceeds the statutory maximum, or
  • The court imposing sentence did not have jurisdiction.
Rule 24.035 applies to guilty pleas, Rule 29.15 applies to guilty verdicts.
If a direct appeal is brought, the postconviction motion must be filed within 90 days after the appellate court issued its mandate; otherwise the motion must be filed within 90 days after the defendant entered the prison system.
An appeal from the denial of a postconviction motion may also be brought before the state Supreme Court or the Court of Appeals, and must be filed within 10 days of the final judgment (40 days from denial of the motion).
A petition for writ of certiorari also may be filed in the U.S. Supreme Court following affirmation of the denial of the postconviction motion. Again, review is discretionary.

3. Federal habeas corpus proceedings

Under federal law, a state offender may seek relief by filing a federal writ of habeas corpus in the U.S. District Court. A federal habeas petition must raise the ground that the petitioner’s imprisonment violates the U.S. Constitution or U.S. laws or treaties. The Missouri attorney general defends the state against habeas challenges.
A habeas petitioner generally is not entitled to an evidentiary hearing on claims for relief. If a hearing is granted, it focuses on allegations that the conviction and/or sentence are in violation of the Constitution.
If the district court grants the writ, the inmate is not automatically released from prison. Generally the court issues an order directing that the state either begin trial proceedings against the inmate within 60 days, or release him.
When a writ is granted, the state can request the district court to reconsider its opinion. If that request is denied, the state can ask that the writ be stayed, suspending the court order. An appeal challenging the district court’s decision is then taken to the 8th U.S. Circuit Court of Appeals for a review by a three-judge panel.
If the 8th Circuit affirms the decision of the district court, the state may request that the panel rehear the appeal or that the entire court hear it. If these requests are denied, the state may ask the U.S. Supreme Court to hear the case by filing a writ of certiorari. The Supreme Court has the discretion on whether to hear a case.
If the district court denies the writ, the inmate must obtain the permission of the district court or federal appeals court to proceed. If permission is granted, the habeas petition then would proceed through the same steps as above.

PAROLE

Parole hearing

Inmates sentenced to two or more years of incarceration must serve a set amount of months before they are scheduled for a parole hearing. The length of sentences and required months to be served before a parole hearing can be held:
Years of sentenceMonths served before hearing
22
33
44
55
66
77
824
930
1036
11-1542
16-2060
21-2578
26-3096
31-35114
36-40132
41-44144
45+156

1. Minimum prison terms

Offenders previously convicted of one or more felonies must serve a percentage of the new sentence. The number of prior convictions determines the percentage of time served before the inmate is eligible for parole.
Defendants convicted of committing a dangerous offense, as defined by statute, must serve a minimum 85 percent of the sentence. If the minimum eligibility date exceeds the conditional release date, the offender is not entitled to conditional release.

2. Parole hearings

The Board of Probation and Parole decides when prisoners are eligible for release on parole. A victim or family of a deceased victim may attend parole hearings or provide information to the board about the crime and request that parole be denied. Once released, the offender remains in the legal custody of the Department of Corrections and is subject to the board’s orders.

PRISON TERMS

MISSOURI REVISED STATUTES, Chapter 558, provides for these terms of imprisonment:
Class A felony:
Death or life imprisonment without the possibility of probation or parole. For offenders younger than 16 at the time of the offense, the penalty is life without the possibility of probation or parole. Example: First-degree murder pursuant to Section 565.020, RSMo.
Class A felony:
10-30 years or life imprisonment. Examples: Second-degree murder; first-degree robbery.
Class B felony:
5-15 years. Examples: Voluntary manslaughter; second-degree robbery; firstdegree burglary.
Class C felony:
Up to seven years. Examples: Involuntary manslaughter; second-degree assault; deviate sexual assault; second-degree statutory rape; stealing a car; third stealing offense; forgery.
Class D felony:
Up to four years. Examples: Passing bad check with no account; second-degree odometer fraud; parental kidnapping.
Class A misdemeanor:
Up to one year. Examples: Fraudulent use of a credit device, value of property or services is less than $500; false advertising; reckless burning; passing bad checks worth less than $500.
Class B misdemeanor:
Up to six months. Examples: First DWI offense; first-degree trespass; removing plants from highways and roadways.
Class C misdemeanor:
Up to 15 days. Examples: Driving with excessive blood alcohol content, first offense; library theft of less than $500.

FINES

CHAPTER 560, RSMo, allows for persons convicted of crimes to be sentenced these fines:
Class C or D felony:
Up to $5,000, or up to twice the amount of the offender’s gain from the crime, not to exceed $20,000.
Class A misdemeanor:
Up to $1,000.
Class B misdemeanor:
Up to $500.
Class C misdemeanor:
Up to $300.
Infraction:
Up to $200.
These penalties do not apply in cases where the statutes outline fines for a specific offense.
In lieu of the fines listed above, a person convicted of a misdemeanor or infraction may be fined up to twice the amount of the offender’s gain from the offense, not to exceed $20,000.
 
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TODD ELLIOT SMASH HIT,,18 AND LIFE,,,WIZARDOFBAUM


Ricky was a young boy, he had a heart of stone
Lived 9 to 5 and he worked his fingers to the bone
Just barely get out of school, came from the edge of town
Fought like a switchblade so no one could take him down, oh no

He had no money, no, no good at home
He walked the streets as soldier and he fought the world alone

And now it's 18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go
18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go

Tequila in his heartbeat, his veins burned gasoline
He kept his motor running, but it never kept him clean
They say he loved adventure, "Ricky's the wild one"
[From: http://www.elyrics.net ]

He married trouble and had a courtship with a gun

Bang bang shoot 'em up, the party never ends
You can't think of dying when the bottle's your best friend

And now it's 18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go
18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go, yeah

"Accidents will happen", they all heard Ricky say
He fired his six-shot to the wind, that child blew a child away

Yeah, yeah, yeah, yeah, yeah
18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go
18 and life, you got it, 18 and life, you know
Your crime is time and it's 18 and life to go