Criminal law relates to laws passed by the United States whose violation constitutes a crime which can result in fines, imprisonment...or even death. Unlike civil law in which private citizens utilize the courts to seek redress or enforce their rights, a criminal trial involves either the Federal government or the State government seeking to obtain a guilty verdict against an individual. It is not individuals using the system but the government itself using the legal system to seek to enforce the laws and punish the individual to protect society.

Both the Federal government and the various states all have their own criminal statutes thus criminal trials can occur in either forum depending on which law is violated. By far most criminal trials involve state laws since the Federal government is restricted in its jurisdiction to particular types of crimes. Well over ninety percent of all criminal trials occur in state courts.

Americans are enormously proud and occasionally exasperated by their complex, expensive, and powerful system of criminal law which goes to tremendous lengths to protect the individual rights of the accused. Most people rightly consider the system as slanted towards ensuring the rights of the person charged with numerous safeguards, chief of which is the requirement that the person is presumed innocent until the government meets the highest burden of proof known in American law: proof of guilt beyond a reasonable doubt to a moral certainty. Further, most systems of American criminal law also require a unanimous verdict by the jury to convict. No system of law in the world imposes such a tremendous burden on the State to meet before it can imprison or otherwise punish a citizen accused of a crime.

Yet, the fact remains that the overwhelming majority of criminal trials result in verdicts of guilty.

And it is a fact that the recent DNA scientific advances which allowed new methods to verify if convicted murderers were guilty have shown that at least thirty percent and perhaps as much as fifty percent of those convicted and waiting on "death row" for execution were innocent...to the point where the governors of several states have refused to allow further executions until it is determined why this remarkable system seems to have failed.

It would appear that despite these remarkable safeguards to protect the accused, the system seems to be resulting in far more guilty verdicts than justified. In the last section of this article we will discuss the economic aspects of the American criminal law system that may explain the perhaps inappropriate level of guilty verdicts: put simply, the system runs on money and the average accused is poor, thus unable to effectively utilize the various safeguards available. A wag put it well: "if you have money, it is the fairest system in the world."

This article will discuss the basic procedures of a typical criminal trial in the United States and the various tactics that usually become vital in a criminal trial in California. The last section will discuss the practicalities of a criminal trial and selection of counsel to defend.

 

1. POLITICAL BASIS OF AMERICAN CRIMINAL LAW

It is an oddity of the American system of political freedom that the one class of persons who are alone capable of enforcing most of the precious Bill of Rights for all American citizens...are those accused of crime! If one reads the Bill of Rights-those first critical ten Amendments to the United States Constitution that provide the most basic rights that American most treasure...one soon discovers that most of them provide for procedures and protections available for Americans should they be accused of crime. Thus the right to trial by jury; to freedom from unreasonable search and seizure; for a prompt and speedy public trial; to not be forced to incriminate oneself; to not be forced to confess; for representation by legal counsel at public expense if necessary, etc. etc. are all contained in the Bill of Rights and those who are charged with the responsibility for making sure the government adheres to these rights are those actually accused of crime since only they have the right to go to court to argue that the government is violating the Bill of Rights.

Thus it may be argued that criminal attorneys and those accused of crime perform the most important legal tasks that exist in our system of law; the protection of the very rights that each American holds most dear. And when one thinks of the most famous trials and attorneys in America, one soon realizes that most of the trials that preoccupy world public opinion are not the civil trials involving money...but the criminal trials involving guilt and innocence, freedom or imprisonment. The O.J. Simpson trial was seen daily around the world by tens of millions who watched as he was found not guilty; but the subsequent civil trial that resulted in a multi million dollar verdict against O. J. Simpson was not only ignored by most, but was completely unknown to most of the world.

Each year three or four famous trials catch the public eye and invariably most of them are criminal trials in which the State, represented by a district attorney, or, if the federal government is involved a United States attorney seeks to obtain a verdict against an individual, usually represented by private counsel. If the individual is incapable of hiring his own private counsel, the State must provide free legal counsel, normally called the public defender. While most cases are not noted by the public, all must be open to the public and some catch the public attention and are followed in the press or even on television.

Perhaps it is the contest between the richest government in the world versus the individual citizen that is intriguing; perhaps it is the titillation of crime and the thrill of the chase and the drama of the court. Whatever the reason, criminal trials in the United States are contests of remarkable interest to the entire world and the complex and expensive system of justice used is both admired and feared around the world. It is a commonplace that criminals abroad will do almost anything to avoid trial in the United States, knowing that the prosecutors are among the best in the world, the court normally incorruptible, and the system relentless in its processes. Equally important, those wrongly accused understand that it is in the American system of justice that one has the most objective system to determine guilt or innocence, with the accused having the right to confront and cross examine the accusers before a jury of impartial citizens.

Above all, it is in the American system that the State has the highest obligation to prove guilt...having to prove guilt, "beyond a reasonable doubt to a moral certainty" and usually required to obtain a unanimous verdict of the jury before a guilty verdict may be rendered: if even one juror refuses to vote guilty, the accused either gets a new trial ("hung jury") or charges are dropped.

There is no other system even remotely like it in the world. Even the English system of law, from which it derived, has no Constitutional Bill of Rights to protect the citizen, nor a Supreme Court that will rigorously review the criminal procedure on appeal to determine if the rights of the accused have been violated. Most systems in the world use a judge or panel of judges who actively seeks to investigate the truth and determine the facts. In the United States, based on a system in which the government is mistrusted and itself constrained by the Constitution, the judge acts only as a relatively passive referee while the prosecutor and the defense counsel argue and attempt to prove their case before a group of citizens chosen at random (the "jury") with the judge remaining quiet and certainly not allowed to direct the jury how to vote except in very unusual situations.

The United States, of course, is the political system which was established based on the premise that government must be restricted in its powers or else individual rights would eventually be abridged by the powerful leaders. 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." The courts interpreted this to provide that if the police wish to search a person, they must normally apply to the court to obtain a document so allowing, a "search warrant."

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...it will be "suppressed." Both before trial and at trial the defense counsel may argue that the evidence was illegally seized and if the court agrees, the evidence will never be seen by the jury.

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...and, indeed, many Americans...as absurd since a guilty person goes free. 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. "Where do you think you are," laughed the officer, "in America?" In that one scene is exemplified the dual purpose of the American courts the prosecution of criminals and the protection of individual rights of the accused are of equal import in the criminal courts of America.

 

2. CRIMINAL VERSUS CIVIL STATUTES: THE PENAL CODE

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. Laws passed in which individual citizens seek to prosecute or defend their various rights /or obtain monetary or injunctive relief is civil law and part of the Civil Code.

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. 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.J. 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.J. Simpson was found not guilty...but a year later lost a massive civil verdict of millions of dollars when the parents of the victims sued him in civil court...it is simply much easier to win a civil case than a criminal case.)

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.

 

3. THE ARREST AND CHARGING PROCEDURE: BAIL AND "OWN RECOGNICANCE"

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. DO NOT AGREE TO ANSWER QUESTIONS UNTIL YOUR LEGAL COUNSEL IS PRESENT. EVER.

One does have a right to have legal counsel at all stages of the criminal proceeding AND IT IS VITAL FOR THE ACCUSED TO CONTACT HIS OR HER ATTORNEY AS SOON AS POSSIBLE. 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." Do not make that mistake. 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.

 

4. THE ARRAIGNMENT: THE PRELIMINARY HEARING

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.

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. "Plea Bargaining," is discussed below and results in the resolution of well over ninety percent of criminal charges. 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.

 

5. DISCOVERY AND LAW AND MOTION IN A CRIMINAL PROCEEDING

Both at the preliminary hearing and in special hearings set before trial, defense counsel can bring various motions, such as motion for additional access to the district attorney's evidence ("discovery motions") and/or motions to suppress evidence since illegally seized, etc. 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.)

Such critical documents as witness statements, police reports, laboratory reports, finger print reports, etc, are all usually delivered to the defense counsel and failure of the district attorney to deliver the documents prior to trial and in the complete condition in an effort to hold back relevant information has been found to be grounds for reversal of convictions. The right of the defendant to see such evidence has been so well enforced by the courts that most district attorneys now make it a practice to deliver all documents without need for a motion. Since the police report and laboratory reports are delivered to the district attorney by the police and are usually vital sources of evidence, it is clear that immediate access to them is a primary goal of any competent defense counsel. Cross examination of police using the police report or of the experts using the laboratory reports is the most common defense presented by the defendant in most cases.

There are numerous other motions defense counsel can bring during this period and often two, three or more hearings are held as the two sides prepare for trial. It is during these hearings that the various rights of the defendant under the Bill of Rights are most often argued with more or less success. By far the most common motion once brought was the motion to suppress evidence illegally seized or to suppress a confession illegally obtained. While the motions are still common, the Courts seldom grant the motions in the present climate and what once resulted in many dismissals of cases are not often successful today.

 

6. TRIAL

The drama of an American trial is so often a matter of television and movies, not to mention books, articles and "live" newscasts, that the average person in the world is quite familiar with its basics:

  1. The attorneys first make any last minute motions they wish to before the judge concerning evidentiary issues or last minute motions to suppress. Usually, at this time, the judge requires the lawyers to prepare their suggested instructions in law that the judge is to present to the jury. This is at times the most vital question of the entire trial since the jury is required to follow the judge's instructions in their deliberations and the district attorney and defense counsel often argue vehemently to the court as to the proper instructions the jury s to receive and improper instructions are often the subject of appeal. During the trial the judge may review the instructions to determine which ones he or she will actually use in advising the jury as to what law they may use during their deliberations. It is common for the judge, out of the presence of the jury, to have the lawyers argue in favor or against various instructions submitted by the other side.

     

  2. The opening statements of the parties then occurs, lasting usually a few hours, sometime longer, and those openings are then followed by the district attorney's case in chief during which the district attorney must prove his case and his witnesses are cross examined by the defense counsel. Finally the defense case is presented with any witnesses the defense wishes to utilize. It is to be recalled that the defense does not have any burden of proof and quite often has no witnesses whatsoever...being content to merely attack the district attorney's case by cross examination and to argue that the district attorney has failed to meet the burden of proving guilt beyond a reasonable doubt. 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.

     

  3. Lastly, both sides can give the closing arguments and these arguments often can win or lose the case and can last for days.

     

  4. The judge then instructs the jury on the law that applies to the case and sends them to a separate room to deliberate and hopefully render a verdict.

     

Both sides can present witnesses, both sides get to cross examine the other side's witnesses, either side can demand a jury trial and if both waive the jury, the matter is heard by the judge alone. The jury is composed of twelve persons (in certain states, six) chosen at random, usually from the voter's roles. Both the State and the defense get to question the jury to determine if they will be fair and impartial and have a certain number of challenges they can bring. (This process is called "voir dire.") Often the judge will, alone, conduct the voir dire, sometimes using questions submitted by the legal counsel. More often, the lawyers will be allowed, for at least a limited time, to question the potential jurors. Voir dire usually only takes a day or two but in major cases involving controversial issues, may take weeks.

The actual evidence to be considered by the jury consists of both documents and oral testimony which is submitted via witnesses who testify under oath and are cross examined by the opposing party. The judge may, but very seldom does, ask a few questions of witnesses and rules on any objections made by legal counsel as to questions propounded by the other side. The jury is never allowed to do more than listen and may have no other contact with the parties or their counsel except to be in court listening to testimony.

Trials can last only a day or two but more usually a week or two. Some trials last months. Each side is allowed to present all the witnesses it wishes, so long as their testimony is relevant. At the end of the testimony of both sides, each can present rebuttal witnesses, subject to the court's discretion as to the relevance. Finally the judge instructs the jury as to the proper law that applies to the case, and the jury is finally allowed to render a verdict after discussion among themselves in private.

Any attorney or party who has waited for a verdict from a jury can advise of the tension that this period creates. The jury may be out a few hours or much longer...even weeks. Often the jury will return to the court to ask to see documents introduced into evidence or ask the judge to repeat certain important instruction as to the law. (It is vital to recall that the judge applies the law: the jury's role is to determine the facts of the case. However, in determining guilty, the jury often has to hear from the judge many times the law's description as to what types of acts constitute a violation of the law.)

If a jury is unable to reach a unanimous verdict after adequate deliberation, the court can declare a mistrial due to a hung jury. Judges dislike having to do that and often ask the jury to try again, sometimes over and over. If they are still unable to reach a unanimous verdict after several attempts, the judge has no power to force them to render a verdict. The judge can only declare a mistrial which means that the trial is voided entirely as if no trial had occurred at all. The district attorney can then dismiss the entire matter or can bring the case again in a second, completely new trial. This is the only time that a defendant can be tried more than once for the same crime.

One of the Bill of Rights prohibits the government from trying the defendant twice for the same crime and this protection is termed the "prohibition against "double jeopardy"). However, that only applies if a verdict of guilty or not guilty is rendered. No verdict, no trial which counts as double jeopardy. Thus, if a hung jury occurs, the matter may be tried once again. It is not unheard of for a district attorney to try the case twice or even three times...though most cases resulting in a hung jury end up being dismissed or with a plea bargain between defense counsel and the district attorney. And note that a verdict of not guilty ends the right of the State to try the matter ever again.

 

7. THE VERDICT: THE SENTENCING AND APPEAL

If found innocent, the defendant is immediately set free. Many verdicts confront multiple charges brought (lesser included offenses quite often) and it is common for a jury to find the defendant innocent of some but not all of the charges brought. Only if found innocent of all charges is the defendant now discharged from the criminal law system and if the defendant is on parole from a prior offense the parole board can seek to revoke parole even if a finding of not guilty was achieved since the parole board is held to a much lower It is not the jury but the judge that determines the appropriate sentence of a person found guilty by the jury. In certain cases, such as those involving the death penalty or in which "unusual circumstances" are charged by the district attorney, there may be a separate and subsequent portion of the trial in which the jury is to determine if the facts warrant the special punishment. (For example, the judge must render a much longer sentence of imprisonment if the jury determines as a fact that a weapon was used in a robbery, thus if the district attorney charges the special circumstances of use of a weapon, the court will instruct the jury to determine as a fact if such a weapon was used and this will directly limit the judge's options in the sentence the judge must impose.)

In most cases the Court, after receiving the verdict of the jury, will continue the matter for several weeks so as to receive opinions of probation officers or specialists and to give the defense and the prosecutor the chance to arrange their arguments in a hearing for the sole purpose of determining the sentence. Once the sentencing hearing occurs, the court normally renders its decision as to the actual sentence to be imposed, usually from the bench, and the defendant can be remanded immediately into prison if that is the sentence.

Criminal appeals are normally directed at errors in law committed by the judge, either during the trial or in instructions to the jury, with the side appealing arguing that the court made an error in law which affected the result of the trial. (A minor error in law which the appellate court determines did not make a significant difference in the trial will not result in a reversal on appeal.) Appeals normally take months or years to hear and very few are successful. If the appeal is successful, the case is normally sent back to the trial court for a new trial...or plea bargained away. Very occasionally, the appellate court may determine that the error requires that the entire charge be dismissed without a new trial.

 

8. PLEA BARGAINING

The overwhelming majority of criminal cases do not go all the way through trial but are bargained by counsel into the defendant pleading to a less serious crime in return for a recommendation from the district attorney to the judge as to an appropriate sentence or fine. Most crimes have "lesser included offenses" to which a person can plead and quite often the district attorney will over charge the case precisely to scare the defendant into pleading out to a lesser offense. For example, if one commits a burglary, (defined as breaking and entering a structure to steal) there is the lesser included offense of larceny (stealing) or even criminal trespass (entering premises without permission) and pleading guilty to one of those lesser offenses is a typical example of "pleading out." The procedure often encountered is that after discussion, the district attorney agrees to reduce the charge to a lesser included one and to make a recommendation to the judge as to sentencing and the defendant agrees to plead guilty to the lesser charge. While the judge is normally not required to follow the recommendation of the district attorney, the judge almost always does and often the defense counsel can withdraw the plea if the judge refuses to agree to the "bargain."

Certain states, such as California, were so concerned at the large number of plea bargains resulting in allegedly lenient sentences that is passed laws prohibiting plea bargaining in certain circumstances and requiring the judges to sentence offenders to a certain minimum amount of time without discretion (fixed minimum sentences.) The judges hated losing that discretion arguing plausibly that the results were often very inappropriate. The law is in flux now and it is unclear how long such restrictions on the court's authority will continue.

In reality, pleas bargaining has continued almost as before and professional criminal attorneys, be they district attorneys or defense counsel, can normally come to a unified professional opinion as to the chances of success and arrange appropriate resolutions with the consent of the court. While criminal trials certainly occur more often than civil trials, most still settle before trial. And, of course, no one can force the defendant to plead guilty if the defendant wants a trial. The right to a jury trial and to force the district attorney to prove his or her case is a Constitutional right that can not be taken away without the informed consent of the defendant.

 

9. PRACTICAL ASPECTS OF THE CRIMINAL TRIAL

When one considered the heavy burden of proof on the district attorney, the discovery rights of the defendant that do not have to be reciprocated, the requirement for a unanimous verdict, the right to a speedy public trial and to even have the State pay for an independent criminal defense counsel if the accused can not afford one, it would seem that no one is likely to ever be convicted of a crime in such a system.

Recall that the defendant does not even have to prove anything: it is up to the State to prove its case beyond a reasonable doubt to a moral certainty and the defendant can remain entirely passive and silent and the prosecutor still lose if he or she cannot meet that high burden of proof.

Yet, in reality, most trials result in verdicts of guilty and most cases do not even go to trial since the accused pleads guilty to a lesser included offense well over eighty percent of the time. With all the burdens on the State, why is this true, why would any defendant plead out and not require the State to meet its seemingly remarkable burden of proof?

While the law would appear to favor defendants, the fact of the matter is that the practical aspects of criminal law and criminal trials do not.

First, it is remarkably expensive to hire and use private legal counsel in a defense case and one must realize that one does NOT receive compensation or reimbursement of legal expenses from the government even if found not guilty. A minor criminal defense legal bill not only requires payment for the lawyer, but for investigators and experts often hired to counteract the police laboratory experts, etc. It is typical to spend twenty to fifty thousand dollars for a simple criminal case and major ones can cost hundreds of thousands of dollars. Even a relatively minor criminal defense, such as drunk driving or shop lifting, can run to over five or ten thousand dollars.

The average person accused of crime does not have a great deal of money. Studies have demonstrated that the average criminal defendant in the United States is poor, black, and a repeat offender. Inevitably those persons are defended by the public defender's office which has very good lawyers but is hopelessly overworked and understaffed. While the district attorneys are equally busy, they can pick and chose which cases to prosecute, have police witnesses who are both credible and compensated by the state to appear, and excellent experts also paid for by the State.

Secondly, there is a definite prejudice against those accused of crime. While the court will instruct the jury to presume the defendant innocent until proven guilty beyond a reasonable doubt, in reality the average citizen supports the police and the prosecutor and does not believe they would arrest and charge an innocent person. Any experienced defense counsel will advise that overcoming this initial prejudice is a primary goal of the voir dire and the opening statement for the defense. Despite the law, the fact is that the defense DOES have the practical burden of overcoming this presumption of guilt existing in the minds of many jurors. While a good defense lawyer can quickly educate a jury as to its true duty in requiring the prosecutor to meet proof beyond a reasonable doubt, the fact remains that the famous burden of proof placed on the State is far less powerful than it would seem.

Thirdly, the police seldom arrest and the district attorney seldom charges those not guilty of something . As one felon remarked to this writer, "If they are hassling you they push you around but they aren't going to charge you with nothing...They beat you up if you are innocent but let you go...they only bust you if you did something since they don't like to handle cross examination from fellows like you." In this writer's experience, less than five percent of his clients were not guilty of at least a lesser included offense. This necessarily means that the evidence is likely to be heavily weighted against the defendant but it also means that the defendant can not testify without committing perjury (since he or she would otherwise have to admit committing the crime) which no ethical attorney can allow.

Under the Code of Ethics an attorney can not knowingly use perjury. For this reason many defense counsel do NOT want to be told the entire truth by their clients thus avoid really speaking to their clients about the facts of the matter so they will not "know." But that "solution" is equally dangerous since the counsel will not really know all the facts thus will not be in a very good position to handle the case that may develop. Without the defendant being truthful with counsel, it is impossible to adequately prepare for the likely impeachment of the defendant on the stand.

Without the defendant refuting the charges with his or her own testimony, the jury can not hear the refutation of the police and other witnesses that would seem to be appropriate from their point of view and even though the judge will instruct the jury about the right of the defendant not to take the stand and instruct them that no evidence of guilt should be inferred from that...the effect on the jury is obvious.

Also, once a defendant takes the stand, the defendant can be asked if the defendant was convicted for certain serious offenses in the past and the effect on the jury of hearing of the past convictions can be disastrous. The initial prejudice against the defendant becomes astronomical if the jury hears that the defendant has already been convicted of past crimes. (One of the common motions brought before trial is to have past convictions ruled inadmissible for purposes of impeachment since the effect would be so prejudicial and courts can bar use of such impeachment. However, most courts will allow at least some reference by the district attorney to serious previous convictions of the defendant who takes the stand.)

Fourthly, while the defense counsel may see various legal defenses of use and may be willing to challenge the prosecutor's case, the average criminal defendant is the one facing the catastrophe of incarceration or worse and is seldom willing to take the chance of trial if any reasonable offer is made by the prosecutor. Unlike civil cases in which the result, at worst, is paying money to the other side, in a criminal case one's entire life is often altered forever if one loses since one is removed from society for months or even years. In capital cases, one is fighting for one's very life. The risks are so staggering, the cost so high, the trauma in one's life so great, that cutting it short by a plea bargain is often a very attractive alternative. Perhaps too attractive since it is by no means impossible to win a criminal trial and good legal counsel can force the district attorney to lose. One must always recall that the case against O.J. Simpson appeared hopeless...until he won acquittal...and acquittal required a unanimous verdict of not guilty.

It is not easy to win a criminal case, but it is by no means impossible and to surrender without a fight is to guaranty the worst possible result. One must confront criminal charges with calmness and determination and recognize both the challenges ahead...and the need for good legal counsel. Whether guilty or innocent, you are entitled to the best defense available and the State is required to adhere to the entire Bill of Rights enacted to protect those accused of crimes; including proof of guilt beyond a reasonable doubt to the unanimous satisfaction of a jury.

 

10. THE ROLE OF DEFENSE COUNSEL: DEFENDING THE "GUILTY"

The role of defense counsel is often attacked by those in America who do not seem to realize that their rights as citizens are on trial in every criminal case: and the person defending those rights is the accused and his or her attorney.

Criminal defense counsel is the lawyer there to protect the rights of the accused and to force the State to prove its case. In that respect, it is irrelevant as to whether the accused is innocent or guilty...his or her rights are vital and must be protected. One should remember that the State hires and pays the judge, the prosecutor, the police, the criminal laboratories, and the only "champion" of the accused is the defense counsel. A vigorous and aggressive defense is required in every case, even those cases which ultimately will plead out, since only such a defense will minimize the results of the plea bargain and maximize the chances for acquittal. For those who question how criminal lawyers can defend those accused of heinous crimes, one must answer that the accused is innocent until the jury determines otherwise and even if the accused admits guilt to the defense lawyer, the accused still must be protected from any effort of the State to short cut the precious rights granted to the accused for a fair trial with competent defense and the entire panoply of protections granted under the Constitution.

Criminal defense counsel, charged with protecting our vital political rights, are the ones usually paid the least and vilified the most among American lawyers. But they are also a dedicated bar, tough and resilient, and well aware that it is they who argue the Constitution in our courts far more often than the civil attorneys who seem to be engaged in disputes about money more than about legal rights of citizens. Used to confronting a hostile press, a professional prosecutor's office and well trained police witnesses, a good defense counsel shrugs aside those aspects of his or her task and confronts the system with realistic and practical defiance. We are lucky to have such a bar...and if you do not believe the writer-you will if ever unlucky enough to be charged with a crime! It will be you and your defense counsel against the State and at that moment you will fully understand the critical role of your defense attorney.