Trial

1. Trial The majestic equality of the law forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. — Anatole France, 1914

2. KEY WORDS Key terms to understand for this chapter… • Right of the press and the public to access to criminal trials • Right to a Trial-by-Jury • Alternate Jurors • Bench Trial • Court Trial • Gag Orders • Impartial Trial-by-Jury • Locked-Down Jury • Public Trial

3. OBJECTIVES After completing this chapter, you should be able to… • Explain the differences between a bench and a jury trial. • Discuss the right of the public and press to attend a criminal trial. • Identify what constitutes a public trial. • Explain the defendant's right to a jury trial. • Discuss the procedure for waiving a jury trial

4. Bench Trial versus Jury Trial • By the beginning of the eighteenth century, the accused was being confronted by witnesses against him/her. • Witnesses were placed under oath to relate facts of their own knowledge; hearsay evidence eliminated. • Juries rendered verdicts based upon the testimony of witnesses given in open court. • not what jurors learned about an accusation outside of court • Rules of evidence were being formulated. • Trial-by-jury was rapidly becoming part of the judicial system in Great Britain, and adopted by the colonists.

5. Prosecutor Patricia Hogue points out defendant Barbara Atkinson, lower left, to the jury and Judge Cliff Stricklin during her final arguments in a Dallas, Texas courtroom. Bench Trial versus Jury Trial • The colonists had deep reverence for trial by jury, and strongly resented interference by theKing of Great Britain in his effortsto subdue them. • This resentment was manifested inthe Declaration of Independence: • “The history of the present King of Great Britain is a history of repeated injuries. • To prove this, let facts be submitted to a candid world. …for his depriving us in many cases, of benefits of trial by jury.”

6. Bench Trial versus Jury Trial Accused’s Right to Jury Trial • To prevent possible future interference with the right to a trial by jury in the newly formed government, the Sixth Amendment to the US Constitution contained the provision that all persons accused of a crime had the right to be tried by an impartial jury. • The provision is binding through the Due Process Clause of the Fourteenth Amendment • and contained in all state constitutions or statutes • While the Sixth Amendment did not mention a number of persons required for a jury, it was generally accepted the common law rule of twelve persons would prevail.

7. Bench Trial versus Jury Trial Right to Jury Trial - Patton v. US • An accused’s being permitted to waive jury trial, and heard by a judge alone was practically unthought of. • It was not until 1930’s Patton v. US that the Supreme Court held a verdict rendered by a jury of fewer than twelve members was not a violation of an accused’s constitutional right to a trial by jury. • Though the Court in Patton sanctioned the right to waive right to a jury, it did emphasize the necessityof preserving the jury trial system.

8. Bench Trial versus Jury Trial Right to Jury Trial - Patton v. US • The Court stated: • “Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.”

9. Bench Trial versus Jury Trial Right to Jury Trial - Duncan v. Louisiana • The Supreme Court further emphasized importanceof the right to a trial by jury in Duncan v. Louisiana: • “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” • “Beyond this, the jury trial provisions …reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizensto one judge or to a group of judges.”

10. Bench Trial versus Jury Trial Right to Jury Trial - Duncan v. Louisiana • The Supreme Court further emphasized importanceof the right to a trial by jury in Duncan v. Louisiana: • “Fear of unchecked power, … found expression in criminallaw in this insistence upon community participationin the determination of guilt or innocence.” • “The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement …must therefore be respected by the States.”

11. Bench Trial versus Jury Trial Avantages to Jury Trial • Advantages of a jury trial over a trial by a judge sitting alone, also referred to as a court trial, include: • belief that a jury of twelve persons, representing a cross section of society, may be better able to evaluate the demeanor of witnesses • group judgment of a jury is better than that of a single person • there is a value in community participation in the administration of justice • the jury injects the common law test into the legal system instead of the legalistic viewpoint

12. Bench Trial versus Jury Trial Trial by Judge Alone • Situations arise in which it may be advantageous to waive right to jury trial in favor of a court trial. • the crime may be a heinous one • emotional involvement of the community may make the selection of an impartial jury very difficult • a defendant’s general appearance may be such that a jury may become prejudiced • past criminal record may subject a defendant to impeachment • the defendant may be a part of a group that local feeling is against, and a jury may convict by association rather than on facts of the case

13. Bench Trial versus Jury Trial Procedure in the Waiver of a Jury • After the Patton decision, a large majority of the states began permitting the defendant to waive trial by jury. • a few states still do not permit a defendant to waive jury trial • others permit waiver in misdemeanors but not on felonies • still others permit the jury to be waived in all cases except those with a maximum penalty of death • one state permits a defendant to waive the jury in capital cases and be tried by a panel of three judges • a few states permit the jury to be waived in any type of charge, including capital cases

14. Bench Trial versus Jury Trial Consent to the Waiver of a Jury • States also differ concerning consent. • who must give it & how the consent is given • Some states (California) provide that waiver is solely the right of the defendant, others that consent must be by prosecution as well as the defendant. • A few require defendant, prosecution & judge all to agree to the waiver.

15. Bench Trial versus Jury Trial Form of the Waiver of a Jury • In some states, (California) the defendant must waive the jury in open court by an express statement to that effect. • others require the defendant to consent to thewaiver in writing before the date of the trial • Some hold that unless the defendant demands a jury trial at the time that he/she enters the plea of not guilty, a jury trial is automatically waived. • If the waiver takes place, it is usually before the jury is selected, but a few states permit the defendant to waive the jury anytime before the verdict is rendered.

16. Bench Trial versus Jury Trial Demanding a Bench Trial • May the defendant waive the jury and demand a bench trial, also known as a court trial? • This was answered by the Court in Singer v. US. • the Court held that while a defendant could waive rightto a jury trial, there is no correlative right to a bench trial, recognizing a prosecutor also has a right to demand jury trial • The Court concluded that forcing a jury trial was not a violation of any constitutional right of an accused. • In this regard, many states permit the judge to refuse to consent to a court trial in lieu of a trial by jury.

17. Bench Trial versus Jury Trial Denial of a Jury Trial in Petty Offenses • Trial by jury is not an absolute right in all instances. • In 1937’s Duncan v. Louisiana, the Court sanctioned a nonjury trial to one accused of a petty offense (not facing incarceration): • “So-called petty offenses were tried without juries both in England and in the Colonies and have always been held tobe exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions.” • “…possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits …resulting from the availability of speedy and inexpensive non-jury adjudications.”

18. Bench Trial versus Jury Trial Determining Petty Offenses • Although statutes of some states designate certain offenses as petty, this is not conclusive, and the courts may render different interpretations of petty offenses. • As stated by the Supreme Court in Frank v. US, the most relevant indication of seriousness of an offense was the severity of the penalty that could be imposed. • severity of the penalty authorized, not the penalty actually imposed by the judge • In Frank case, the Court implied they were relying on criterion set forth in Cheff v. Schnackenberg.

19. Bench Trial versus Jury Trial Determining Petty Offenses • Cheff adopted the definition of a petty offense found in 18 US Code, section 1, where it is described as: • “…any misdemeanor the penalty for which does not exceed imprisonment for a period of six months or a fine of $500.” • A few states grant a defendant the right to a jury trial in all misdemeanor charges irrespective of the penalty. • but deny right to a jury trial on infractions—violationsfor which no imprisonment may be imposed

20. Bench Trial versus Jury Trial Juries Comprising Fewer Than 12 Persons • Laws of the US, as well as of most of the states, (California) require a criminal trial jury to consist of twelve persons. • There are a few states where, in misdemeanors the jury may comprise any number fewer than twelve. • As in Patton, in some states it is held that a felony trial must commence with twelve persons in the jury, but if one should become incapacitated, trial may continue with fewer than twelve if agreed to by the defendant, his/her attorney, and the prosecution.

21. Public TrialEstes v. Texas • The Sixth Amendment provides guarantee to a public trial, to ensure the accused is dealt with fairly. • Stated by the Supreme Court in Estes v. Texas: • “History has proven that secret tribunals were effective instruments of oppression.” • “…traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.”

22. Public TrialEstes v. Texas • The Sixth Amendment provides guarantee to a public trial, to ensure the accused is dealt with fairly. • Stated by the Supreme Court in Estes v. Texas: • “Clearly the openness of the proceedings (the trial) provides other benefits as well (as a safeguard against oppression): it arguably improves the quality of testimony, it may induce unknown witnesses to come forward with relevant testimony, it may move all the trial participants to perform their duties conscientiously, and it gives the public the opportunity to observe the courts in the performance of their duties and to determine whether they are performing adequately.”

23. Female prosecutor addresses the courtduring an arraignment, Santa Ana, Ca. Public TrialWhat Makes a Trial Public? • While guarantee to a public trial appears on the surface to be clear & explicit, it is not without complications. • what constitutes public trial is not defined by the Sixth Amendment or by any of the laws of the states • It is clear that a public trial is one that is not secret. • commonsense interpretation of public trial is one thegeneral public is freeto attend, and doorsof the courtroom arekept open

24. Public TrialPublic Right to Attend • Courts have been far from unanimous in answering the question of public exclusion from the courtroom. • The issue is whether the public may be excluded in any situation without violating guarantee to a public trial. • a question usually when a trial involved salacious testimony • Two cases addressing exclusion of the public from trial were Richmond Newspapers Inc. v. Virginia and Globe Newspapers Co. v. Superior Courtfor the County of Norfolk.

25. Public TrialClosing the Trial - Richmond Newspapers • The Court in Richmond Newspapers recognized that the right of press & public to access to criminal trials was based on the First Amendment of the Constitution. • not the Sixth Amendment right to a public trial • After three mistrials, due to interference by spectators, the defense requested, and the prosecution voiced no objection to, a closed trial • under Virginia statutes, the judge granted the request toclose the courtroom to the press and the public • Richmond Newspapers, Inc., filed an objection, and the Virginia Appellate Court upheld the judge’s ruling.

26. Public TrialClosing the Trial - Richmond Newspapers • The case was appealed to the US Supreme Court on grounds that First Amendment freedom of the press had been violated by barring the press from the trial. • The Court noted the First Amendment doesn’t mention the right of public access to a criminal trial explicitly • but is broad enough in scope to encompass certain rights not specifically mentioned, inlcuding access to criminal trials. • The Court stated: • “Underlying …right of access to criminal trials …is the common understanding that a major purpose …was to protect the free discussion of governmental affairs.”

27. Public TrialClosing a Portion of a Trial - Globe • Richmond Newspapers concern closing the entire trial. • leaving question of whether press & public can be excluded from a portion of the trial • The Court discussed this in Globe Newspapers: • “Although the right of access to criminal trials is of constitutional stature, it is not absolute.” • “…circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one.” • “… it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”

28. Associate Justice Harry A. Blackmun, was appointed to the Supreme Court by President Richard Nixon and served from 1970 to 1994. Public TrialPublic Exclusion from Pretrial Hearings • In Gannett Co. v. DePasquale the US Supreme Court held that press & public may be excluded from pretrial hearings, such as a pretrial hearingon the suppression of evidence or a preliminary hearing. • Gannett upheld exclusion based on grounds that adverse prepublicity could pose a risk to the defendantand prevent a fair trial.

29. Public TrialPublic Exclusion from Pretrial Hearings • The Court noted there is a difference between the trial itself and pretrial hearings, and case stated: • “Publicity concerning pretrial suppression hearings …poses special risks of unfairness.” • “… purpose of such hearings is to screen out unreliable or illegally obtained evidence and ensure that this evidence does not become known to the jury.” • “Publicity …could influence the public opinion …and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.” • “This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial.”

30. Former middle school teacher Debra Lafave, 24, with her attorney John Fitzgibbons, before a hearing at Hillsborough County Courthouse in Tampa, Florida. LaFave pleaded guilty to lewd behavior with a teenage boy and was placed on probation. As part of her probation, Lafave was to abstain from contact with minors under eighteen years of age. Public TrialPublic Exclusion from Pretrial Hearings • As a general rule, a court will not allow a closed hearing without a strong showing of prejudice to the requesting party.

31. Public TrialFair Trial versus Freedom of the Press • It may be concluded the public is entitled to know justice is taking place during a criminal trial. • therefore, with some reservations, permitted to attend trials • As not all members of the public may be able to attend, the media have assumed responsibility of informing the public about what takes place during certain trials. • The problem arising is how far the news media may go in obtaining information and reporting it to the public • courts & media are often in conflict over this question

32. Public TrialFair Trial versus Freedom of the Press • When the courts attempt to curtail the media, the media allege violation of their First Amendment. • Courts, on the other hand, hold that an accused is entitled to fair trial by an impartial jury. • and when that right is interfered with by themedia, they have exceeded their prerogative • Because of the right of the public to be informed, the courts generally have permitted reporters to be present during criminal trials.

33. Public TrialFair Trial versus Freedom of the Press • Courts concede that when news gathering during trial becomes disruptive or denies the defendant a fair trialby an impartial jury, some control must be exercised. • The Supreme Court has stated: • “…the chief function of our judicial machinery is to ascertain the truth. The use of television, however,cannot be said to contribute materially to this objective.” • “…experience teaches that there are numerous situations in which it might cause actual unfairness, some so subtle as to defy detection by the accused or control by the judge.”

34. Public TrialFair Trial versus Freedom of the Press • After Estes, courts generally prohibited live coverage. • but media eventually renewed pressure for it • Regardless of strong arguments against it, more and more courts are permitting live trial coverage. • Great strides have been made to protect victims in rape cases from embarrassment during trial, to encourage victims to come forth and report such offenses. • It is believed, due to live coverage of trials, many victims of all types of crime will not report offenses. • rather than face testifying before television cameras

35. Prosecutor Hank Goldberg pleads his case to JudgeLance Ito in Los Angeles, California District Courtafter he was admonished for wasting time. Public TrialFair Trial versus Freedom of the Press • In 1996, the nation watched the televised trial of O.J. Simpson. • As in the results of the coverage of that trial, many in the justice system are seriously concerned about the effects such coverage. • not only from the stand-point of the defendant,but also concerning thesafety of witnesses

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