Criminal Procedure

C

Trial Motions

When all of the prosecution’s evidence has been presented and the prosecution rests its case, the defense often asks the trial judge to direct the jury to return a verdict of acquittal (not guilty). The defense’s motion for a directed verdict is based on the premise that the prosecution's evidence, even when viewed in the light most favorable to the prosecution, fails to prove that the defendant committed the crime charged. If the motion is granted, the defendant is acquitted. If it is denied, the defendant may then present evidence in opposition to the prosecution's evidence. After the defense rests—that is, finishes presenting its evidence—the defendant may renew the motion for a directed verdict. If the judge again denies the motion, the case goes to the jury after the judge provides instructions concerning the applicable law.

D

Burden of Proof

In criminal cases, the defendant is presumed innocent until the prosecution proves each element of the crime beyond a reasonable doubt. Thus, the law requires the jury to acquit the defendant unless it is convinced of the defendant’s guilt beyond a reasonable doubt. The jury in a criminal case may not convict on a finding that the defendant’s guilt is more likely than not. On the other hand, the law does not require absolute certainty. The standard for determining guilt is somewhere in between these two standards of proof.

E

Hung Jury

A jury that is unable to agree on whether to convict or acquit is called a hung jury. In some states the jury must be unanimous in their verdict, whereas other states permit less than unanimous verdicts in some cases. If the jury is unable to reach a verdict, the defendant, not having been acquitted, may be retried later before another jury. A retrial following a hung jury does not violate the Fifth Amendment’s prohibition against double jeopardy, which generally prevents a person from being tried twice for the same offense (see Jeopardy). The prosecution may or may not choose to retry the accused.

VII

Motions After Trial

After a guilty verdict is issued, but generally before sentencing, the convicted defendant may make a motion for a new trial on the premise that a mistake prejudicial (harmful) to the defendant was made at the trial. Prejudicial errors include errors in the judge’s rulings on the admissibility of evidence or instructions to the jury, or some misconduct by the jury, judge, or prosecutor. The defendant may also move for a new trial based on the argument that the evidence was not sufficient to support the jury’s guilty verdict. A motion for a new trial on the basis of newly discovered evidence that, had it been available at the trial, might have resulted in an acquittal may be made after the defendant has been sentenced; however, there is generally a time limit on this. If the trial judge grants the motion for a new trial, the conviction is set aside and the defendant may be tried again by a new jury. If the motion is denied, the defendant will be sentenced.

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VIII

Sentencing

Once guilt has been determined, either by verdict following a trial or by the entry of a guilty plea, the defendant must be sentenced. Generally, the trial judge imposes the sentence, which must be within the statutory limits set by the legislature for the crime in question. In a few states, the jury fixes the sentence. Available sentences include fine, forfeiture (loss of property), restitution, probation, some form of incarceration or deprivation of liberty, or a combination of these. For certain very serious offenses, the convicted offender may be sentenced to death.

The sentencing options available to the judge are often defined by the legislature. In jurisdictions that use indeterminate sentencing, the judge has discretion to set the sentence at a maximum and minimum term within a broad range permitted by law. Parole authorities then determine the actual release date within those limits depending on the prisoner’s behavior and progress toward rehabilitation. In contrast, a determinate sentence imposes a fixed term of incarceration with no early release through parole. In jurisdictions that use presumptive sentencing, the judge sentences the offender to a term that falls within a narrow range prescribed by the legislature, and offenders are expected to serve this term. However, a judge may permit a departure from this presumptive sentence—either an increase or decrease in the length of the term—if specific justification is shown. Legislators often spell out in detail the factors that justify a judge’s departure from the presumptive sentence. Some states have enacted statutes that provide for long and often mandatory terms of imprisonment upon proof that the defendant has a prior record of criminal activity.

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