Ⅵ. Supplementary reading.

The Criminal Justice Process

Although a particular law may be constitutional, the process and procedures for implementing the law, as well as the procedures used for ascertaining the guilt or innocence of the accused, must conform to strict constitutional guarantees. Safeguarding the rights of the citizenry has always been an American priority, and it often has been stated that it is better to free guilty persons than to convict innocent ones. No matter how elaborate the judicial machinery, however, there is no guarantee that guilty persons will be convicted and innocent ones set free. Nonetheless, an elaborate legal environment has been established in order to attempt to minimize wrongful results, as illustrated by the following pretrial steps that state courts must follow.

The bill of information and complaint. The police play the major initial role in bringing citizens before the law. Most arrests are spontaneously made by police officers or occur after limited investigatory work, but another class of legal actors—prosecutors—also play an important role. After conducting typically extensive background investigations in corroboration with local and even federal law enforcement, prosecutors may file what are called bill of information. The bills, which are used in approximately half the states jurisdictions（most probably in the West）, are left solely to the discretion of the prosecutor. The bill of information is formally filed before the court having jurisdiction over the subject matter of the case and the defendant. If the magistrate accepts the information, the defendant is bound over for trial. The complaint, on the other hand, is generally initiated in the criminal process for prosecuting misdemeanors. Any citizen or law enforcement officer may apply to the courts to issue a complaint.

The grand jury process. Although in some states the bill of information supplements a grand jury appearance, half the state jurisdictions use exclusively the grand jury process. A grand jury typically consists of sixteen to twenty-three citizens. Grand juries often convene for periods lasting six months and one year. During the course of their meetings, the members of the jury hear numerous cases. All evidence is presented by the prosecutor:The accused may not refute any of the testimony, nor is the defense attorney present. At the end of the presentation of the state's evidence, the grand jury members vote. Majority rule prevails. If a majority of the members believe a crime has been committed, then a“true bill”is returned, and the accused is bound over for trial. If the majority believes no crime has occurred, then a“no bill”is returned, and the matter is terminated. Because the defendant is not allowed to put on a defense, it should come as no surprise that“no bills”are returned in only three percent of the cases.

The arrest. As mentioned above, most persons are brought before the courts after a formal arrest has been made by the police. An arrest occurs when a peace or police officer takes a suspect into custody for the purposes of charging the individual with a crime. The arrest may result from the police officer's own perception that a crime has been or is about to be committed. Arrests may also occur after an official arrest warrant has been issued by a magistrate or judge. In order to get a warrant, the official must convince the court that criminal activity has been or is being committed, since courts may not issue warrants unless there is probable cause that criminal activity is afoot.

Booking. After the arrest the accused is brought to the police station to undergo the booking process. Booking generally precedes any official court appearances by the defendant. The police record the charges, fingerprint and photograph the suspect, and conduct general inventory searches for weapons and contraband. After the preliminary investigation the charges against the accused are occasionally dropped, most often if a nonserious misdemeanor has been committed. Moreover, the case may be dismissed if it is believed that an unconstitutional arrest has occurred. Thus, if an officer has arrested someone without sufficient proof of criminal activity, or if the evidence indicating that a crime has been committed was seized unconstitutionally, the case is generally dismissed. Whether or not the search and seizure was proper is typically determined by the police in conjunction with the prosecutor's office. Further, the accused should be informed of his or her rights at the time of arrest and in any case no later than at the booking stage.

The decision to prosecute. After a suspect has been booked, the decision must be made whether or not to prosecute. This determination is made solely by the prosecutor, whose decision is binding if the party harmed is opposed to bringing the case. Conversely, victims of criminal activity cannot compel the prosecutor to bring charges:The decision to prosecute largely depends on the strength of the state's case against the accused. A variety of other factors also affect the decision, including:（1）attitude of the victim; （2）cost to the system; （3）harm to the suspect; （4）adequate alternate procedure available; and（5）suspect's willingness to cooperate with law enforcement.

The initial appearance. The initial appearance is the scene of several important events. First, the defendant is informed of the charges that have been levied, which are usually outlined in a complaint developed by the prosecutor, and is informed of all his or her constitutional rights and guarantees. Next, a determination is made with regard to the amount of bail to be required, if any; however, bail is a privilege, not a right. The Eighth Amendment to the U.S. Constitution provides only that“excessive bail shall not be required. ”It is clear from the wording that if there is to be bail at all, it shall not be excessive, but courts may establish a nominal bail fee or release persons“on their own recognizance. ”Persons released on their own recognizance are not required to provide any bail money but need simply promise to appear for any future trial proceedings.

The magistrate may also make inquiries into the merit of the state's case.Further, if the court has the power to try the merits of the charges. The accused may be asked to make a plea of guilty or not guilty. A guilty plea generally results in a judge-pronounced sentence. If the accused asserts his or her innocence, a trial date is set. However, in relatively serious cases the primary responsibility of the magistrate is to determine whether or not the defendant requires a preliminary hearing.If so, the matter is adjourned by the prosecution, and defense attorneys prepare their cases.

The preliminary hearing. In many instances the initial appearance is indistinguishable from the preliminary hearing. In all state jurisdictions the accused is granted either a preliminary hearing or a grand jury hearing, and in a few states defendants are guaranteed both proceedings. At the preliminary hearing the state must establish that it had probable cause to believe that the defendant committed the crime for which he or she has been arrested and charged. It is not necessary for the state to prove guilt beyond a reasonable doubt, since the burden of proof at the preliminary hearing is much less than it is at the formal trial proceeding. The primary purpose of the preliminary hearing is not to conclusively establish guilt or innocence but to provide additional safeguards for the rights of the accused. After the presentation of the prosecutor's case the accused has the right to cross-examine witnesses and produce favorable evidence.

At the end of the presentation of the prosecutor's and defendant's cases, the magistrate or preliminary hearing jury must decide whether the state had probable cause to arrest the accused. If the probable cause does not exist, the complaint is dismissed. Otherwise, the accused is bound over for a formal trial in a higher court. If the defendant is bound over for a formal trial, the prosecutor must file a bill of information specifically outlining the charges that will be adjudicated in the new legal setting. In states that allow for both a preliminary hearing and a grand jury presentment the defendant must be bound over to the grand jury for a formal indictment if probable cause is found to exist at the initial hearing.

The arraignment. Prior to the arraignment the accused played a relatively inactive role in the legal proceedings. At the arraignment, however, the accused must make a plea. The pleas include guilty, not guilty, not guilty by reason of insanity, or nolo contendere（no contest）. If the accused refuses to enter a plea, the court automatically enters a plea of not guilty. The arraignment is important also because the defendant is again informed of the charges, counsel is appointed（if the defendant is indigent）, and bail is established. Approximately 75 percent of all accused plead guilty during this proceeding. If a plea of not guilty is entered, the defendant's attorney files all relevant pretrial motions before the beginning of the formal trial. In the interim, a trial date is established, and the proceedings will begin as scheduled unless additional motions made by the attorney delay them.

The trial. Adjudicating the merits of the state's case can be an extremely complicated and prolonged event. Indeed, some major criminal prosecutions have lasted a year or longer. All persons are guaranteed the right to a speedy trial, however, and the typical criminal trial consumes between one and three days. Further, the decision as to guilt or innocence is to be made by a jury of one's peers or by a nonjury trial, and the proceedings themselves must meet all constitutional standards.

The Trial Process

Although defendants have the right to a trial by a jury of their peers, they may elect to waive the jury. If the jury is waived, the presiding judge or magistrate will preside over the proceeding and render a decision as to the guilt or innocence of the accused. It is worth noting that only in approximately 10 percent of all criminal cases does a jury or bench trial（a trial presided over by a magistrate）take place. In 90 percent of the cases the accused either pleads guilty to all charges, or else a plea bargain coupled with a guilty plea results. Sixty percent of all criminal cases that go to trial are tried by a jury, and the remainder are tried before the presiding magistrate.

Voir dire. The voir dire is the process used to select a jury. A random crossselection of persons in the community in which the trial is to occur is summoned to the courtroom. The prospective jurors take the stand and are presented a variety of questions by the prosecution and defense in an attempt to select a jury acceptable to both sides. Jurors are excluded by one or two methods. The first, called the peremptory challenge, allows either side to have prospective jurors excused without having to specify a particular reason. These types of challenges are typically limited to six in nonserious cases and twelve in felony or capital cases. The second method, called the challenge for cause, allows for the exclusion of a juror only if the excluding party（defense or prosecution）demonstrates that the individual cannot be impartial or cannot otherwise handle the responsibility of making a rational decision. Jurors are excluded who（1）have already formed an opinion about the guilt or innocence of the accused; （2）are related to any of the parties or legal actors in the case; （3）are physically or mentally impaired to the extent that the impairment will interfere with their decision-making process; or（4）are otherwise considered to be incapable of remaining impartial until the case is presented. There are no limits to the number of challenges for cause that either side may employ.

Opening statement. After the jury is selected and all the appropriate motions have been made, the prosecution begins the proceedings. The proceedings are begun with an opening statement before the jury, which typically includes comments about what the state will prove and an attempt to clarify the issues the jurors must resolve. Indeed, the prosecutor may discuss the evidence to be presented as long as that evidence has not been previously excluded or is likely to be excluded when presented at trial. If the prosecutor makes statements that unnecessarily inflame the jury or are untruthful, the defense may move for a mistrial.

The prosecutor then presents his or her opening statement, or the defense makes an opening statement. In some states the opening statement by the defense does not occur until the prosecution has finished presenting its case. Typically, the opening statement by the defense is made to inform the jury about the facts that will serve to acquit the accused. Like the prosecutor, the defense attorney must limit the scope of the statements so as not to intentionally mislead the jury. Thus, it is considered“bad faith”and reversible error for the defense attorney to discuss the merits of evidence that cannot be later admitted into the proceedings. Like the prosecutor, the defense attorney may waive the right to present an opening statement.

The prosecutor's case. After the termination of the opening statement the prosecution presents its case. The state must overcome the presumption of innocence by establishing guilt beyond a reasonable doubt, which the prosecution typically attempts to do by parading a series of witnesses before the jury. Each witness is examined, and the appropriate tangible（as opposed to oral）evidence is also presented. Tangible evidence includes fingerprints, blood and urine sample, knives, bullets, ballistics tests, and any other documents or items that serve as visual aids. Finally, the prosecution has the responsibility to promote a just result.

Motion for a directed verdict. At the close of the prosecutor's case the defense may move for a directed verdict. The defense counsel asks the judge to remove the jury from the courtroom, and then the motion is made. This motion, in effect, asks the judge to dismiss the charges against the accused because the prosecution has failed to prove its case. The jury is moved from the proceedings because it is rare for the judge to rule favorably on the defendant's motion. Denying the motion in the jury's presence may give the impression that the judge strongly favors the contention of the prosecution, which may taint the rest of the proceedings.

The defendant's presentation. If the motion for a directed verdict is denied, the defense must then present its side of the case. Witnesses are sworn in, and testimonial and tangible evidence are presented in order to establish the guilt or innocence of the accused. As was the case with the defense attorney during the presentation of the state's case, the prosecutor has the right to cross-examine all witnesses. The purpose of the cross-examination is to raise the possibility that the testimony is erroneous. The defendant may take the stand and testify but may not be compelled to do so. Indeed, the right against possible self-incrimination is protected by the Fifth Amendment. At the close of the defendant's case the prosecutor has the right to rebuttal（to try to weaken any new evidence or testimony）, and then the defendant has the right of surrebuttal（rejoinder）. The defense may rebut only the new information and cannot discuss the information presented prior to the prosecution's rebuttal.

Closing arguments. The closing arguments for summation generally represent the last opportunity both attorneys have to address the jury. The summation is not the time or place to present new evidence. Remarks are generally limited to attacking the opposition witnesses and extolling the virtues of one's claims. The defense attorney speaks first, followed by the prosecutor. The time allowed the summation is controlled by the judge but usually without specified time limit. All relevant comments are accepted. Summations of less than thirty minutes are common, but lectures lasting several hours to several days occasionally do occur.

The prosecutor may close by（1）summarizing the evidence; （2）emphasizing discrepancies and conflicts in the defense testimony; （3）arguing that the evidence supports the prosecutor's claim for conviction; （4）emphasizing the negative effects of crime on society; （5）discussing the need for law and order; and（6）commenting on the conduct of the accused.

The primary task of the defense attorney during the summation is to refute the prosecutor's evidence and to emphasize the positive points concerning the defendant's case. Other common strategies include（1）stressing to the jury the responsibilities concerning the issue of reasonable doubt and the presumption of innocence;（2）presenting the facts in the light most favorable to the defendant; （3）anticipating and diminishing the prosecutor's closing arguments; （4）discrediting witness; （5）emphasizing the good qualities of the accused; and（6）discrediting the state's case.

Jury instruction. The judge is responsible for giving the instructions of law to the jury（sometimes called charging the jury）. Specifically, the judge must explain the appropriate law involved, the elements of the crimes charge, and the applicable defenses available to the accused. Both the prosecution and the defense assist the judge by submitting in writing those instructions they would like presented, and it is within the discretion of the judge to accept or reject these suggestions. Typically，jury instructions are not formulated by the judge, prosecution, or defense. Rather,“form”instructions are taken from standard jury instruction forms that have met the particular state's basic requirements. These instruction are designed to be simple enough for the average juror to understand yet complete enough to avoid any potential reversible errors on appeal.

The jury deliberations. After the charge to the jury the veniremen（jurors） retire to private conference chambers and decide the fate of the accused. These proceedings are completely private. There is no stenographer, and no records are kept. Indeed, most judges admonish jurors not to speak about the deliberation process. However, horror stories about the procedures used for reaching verdicts occasionally emerge, including such things as fist fights; verdicts by intimidation, acquiescence, and apathy; and even verdicts resulting from the toss of a coin. However, most research into the verdict process suggests that jurors attempt to be fair and resolve the issues in a dignified manner.

Jury deliberations typically last from several hours to one day. Occasionally, however, the deliberations take several days and very rarely one or more weeks. Most state jurisdictions still require that the verdict be unanimous for both acquittal and conviction. If anything less than a unanimous decision is reached, a mistrial results. If a mistrial occurs, the defendant may be required to go through the entire process again, since a retrial resulting from a mistrial does not constitute double jeopardy. As a result of recent Supreme Court decisions, some local jurisdictions have done away with the unanimity requirement; verdicts in which as few as two thirds of the jurors vote to convict or acquit are considered to be constitutional.

The verdict. The object of the jury deliberation is to arrive at a verdict. Jurors do not have to find the accused charged as specified in the indictment. For example, one who is charged with murder in the first degree may be found guilty of some lesser included offenses（e. g. , murder in the second degree, voluntary or involuntary manslaughter, or if the accused was charged with several offenses, he or she may be found guilty of some charges and not guilty of others）. Guilty verdicts occur in approximately 65 percent of all jury trials; hung juries result in approximately 5 percent of all trials.

Sentencing. If the accused is found guilty, the sentencing stage follows. Possible sentences are outlined in the state statutes and are occasionally determined by the jury but usually by the judge. Sentences may be suspension, probation, jail term, fine, disqualification to hold public office or even capital punishment.

The appeal. Following the trial the accused may attempt to appeal the conviction or the sentence. If an appeal is allowed, the defense attorney must be able to demonstrate some significant procedural error that led to the conviction. Such errors are called reversible, as opposed to harmless, errors. An error is considered harmless if its inclusion in the proceeding has had no effect on the outcome of the trial. Approximately one third of all convictions are appealed, and of these 15 percent are reversed. Winning in the higher court does not win the accused freedom, merely the right to a retrial without the procedural deficiency. Only if the prosecutor does not again try the case will the accused be set free.

The chart below sets forth the legal phase describing each ofthe standards ofproof, the level of belief that each standard must reasonably establish, and the types of action that may be taken when the particular standard ofproofis met.

STANDARDS OF PROOF AND LEVELS OF ACTION

（This chart is taken from Legal English by He Jiahong. ）

Answer the following questions according to the passage.

1. Do you agree with the statement that“it is better to free guilty persons than to convict innocent ones”？

2. Who files the bills of information, the prosecutor or the grand jury? How does a grand jury decide whether or not to return a“true bill”？

3. When does an arrest occur? What does it result from？

4. What factors may affect the decision to prosecute, according to the passage？

5. Who conduct a preliminary hearing? What must they decide after the presentation of the case？

6. Why is the arraignment important？

7. What is the function of voir dire? Do you know the difference between peremptory challenge and the challenge for cause？

8. Why are the“form”instructions designed to be simple？

9. What would happen if a mistrial occurs？

10. What kinds of sentences may be imposed if the accused is found guilty？