chapter fifteen the verdict and appeals chapter fifteen the verdict and appeals in this court...

Chapter FifteenThe Verdict and Appeals

Chapter FifteenThe Verdict and Appeals

In this court dissents have gradually become majority opinions.In this court dissents have gradually become majority opinions.— — Supreme Court Justice Felix Frankfurter in Supreme Court Justice Felix Frankfurter in

Graves v. New York, 360 US 466, 1939 Graves v. New York, 360 US 466, 1939

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Boykin Advisement• Curative instructions• Impaneled jury• Manifest necessity• Mistrial• New trial• Verdict

Key terms to understand for this chapter…

KEY WORDS



OBJECTIVES

After completing this chapter, you should be able to…

• Explain the meaning of a verdict.• Discuss when a defendant is entitled to a mistrial.• Identify when a defendant after a mistrial may be

subjected to a new trial.• List the grounds that a defendant can use on appeal to

obtain a new trial.• Explain the process for the pronouncement of judgment

and the arrest of judgment.



OBJECTIVES

After completing this chapter, you should be able to…

• Discuss the issues regarding the release of a defendant during an appeal.

• Explain the methods of appeal.• List those situations in which the prosecution may

appeal.

(cont.)



• Derived from the Latin word verdictum, the word verdict means “a true declaration.” – in a court trial, the verdict is the decision of the judge – in a criminal trial, the verdict is the decision of the jury

• Once a verdict in a criminal trial has been agreed on, the foreperson will advise the bailiff, who informs the judge, who will reconvene court to receive the verdict.

• The judge usually will adjourn court while the jury deliberates, permitting the judge to perform other tasks.– while being available to furnish further instructions or

information that the jury may request while deliberating

Verdict



• After court is reconvened, the judge will instruct the bailiff to return the jury to the courtroom.

• After all the jurors are accounted for, the judge will ask the foreperson whether the jury has agreed on a verdict.– the judge may ask him/her to announce the verdict

– the judge may request it be given to the clerk to read

• The defendant must be present at the time the verdict is announced in open court unless his/her whereabouts cannot be determined. – the verdict may be announced in absence of the accused

Verdict



• After the verdict is announced, the prosecution or the defense may request the jurors be polled individuallyto determine how each voted on the verdict.

• When the verdict must be unanimous, if one or more jurors allege that the verdict does not express all the jurors’ opinions, the judge may instruct the jury to return to the jury room for further deliberation. – if the facts warrant such action, the judge may discharge the

jury and declare a mistrial

Verdict



• If the jury returns the verdict not guilty, the defendant is entitled to immediate release if in custody.

• If the defendant is out on bail, “security” will be returned to the person who posted it.– in either event, the defendant is free from further prosecution

on the crime charged.

• If the defendant is found guilty, the next procedural step is sentencing.

Verdict



• Other matters to consider before sentencing, all of which may affect the sentence imposed include… – the jury may have found the defendant guilty as charged, or

guilty of a lesser degree, guilty on some charges & not others

– jury may be asked to determine if the defendant was armed at the time that a crime was committed (enhancement).

• Once the verdict is announced in open court, it will be recorded in the record of the case, and the jury will be discharged unless involved in the sentencing.

• If it is a court trial, the judge has the responsibility of rendering the verdict.

Verdict



• If the judge believes the evidence shows the defendant was not guilty to the degree that the jury found, thejudge may modify the verdict.– finding the defendant guilty of a lesser degree or lesser crime

• Some states permit a judge to set aside a guilty verdict& enter a judgment of acquittal, or dismiss the charge. – the judge’s action in this regard is usually a bar to any

further prosecutive action against the defendant

• The right to set aside the entire verdict is very powerful. – a judge may not set aside a verdict of not guilty, since this

action would deny the defendant the right of a trial by jury

Verdict



• After a jury has returned a verdict of guilty, the defense may request a new trial, granted only on a motion or request of the defendant and not a judge’s own motion. – if a new trial is granted, the case will usually be heard before

the same judge, from the beginning, but with a new jury

– grounds for granting a new trial are specifically set forth in the codes of most states

• While it has been stated a new trial may be granted only on statutory grounds, some courts have held that new trials should be granted on nonstatutory grounds.– when a failure to do so would result in a denial of a fair trial

VerdictNew Trial and Mistrial



• One of the more frequent grounds for granting a new trial is newly discovered evidence by the defense.

• It has been held by some courts that newly discovered evidence must be of sufficient importance to indicate a probable acquittal in a new trial.

• The prosecution has the right to argue against the granting of a new trial.

• The judge may deny the motion without any argument being presented.




• Granting a new trial is not to be confused with declaring a mistrial. – motion for a new trial may not be made until a verdict of

guilty has been rendered

– a mistrial may be declared anytime during trial proceedings,on the judge’s own motion or at the request of the defense

• Prosecution right to request a mistrial is somewhat restricted and not permitted in all jurisdictions.

• A mistrial may be declared any time there is misconduct so prejudicial the defense would be denied a fair trial. – the misconduct may occur anytime in the trial proceedings




• Sometimes, rather than declare a mistrial, the judge will instruct the jury to disregard the misconduct and inform them that it is not to affect them in rendering a verdict.– such admonition is not always effective, as jurors cannot

always erase something they have heard

– if the defendant is convicted, the failure to declare a mistrial may be grounds for reversal on appeal

• A judge may declare a mistrial when the jury cannot agree on a verdict.

• If a mistrial is declared at defense request, the case can usually be tried again at the discretion of the prosecutor.




• The retrial is not considered a violation of the double jeopardy guarantee, since the defendant, in requesting a mistrial, waives the guarantee against double jeopardy.– some jurisdictions hold unless there is cause to declare a

mistrial or the defendant agrees to the mistrial, jeopardymay have set in, andthe defendant cannotbe retried


Jury seated in jury box in courtroom listeningto closing arguments by counsel.



• In Arizona v. Washington, the Supreme Court upheld the action of the trial judge in declaring a mistrial at request of the prosecution.– when a defense attorney made improper statements to the

jury during the opening argument

• The Supreme Court stated that before a trial judge could declare a mistrial over the objections of the defense, it must be established that there was a “manifest necessity” for such action. – in other words, sufficient evidence to prove such action

should be taken




• If a new trial is not granted after the verdict is rendered, the next procedure is the pronouncement of judgment. – usually thought of as oral sentencing of the defendant

• This judgment will set forth the plea entered, the verdict, and, if guilty, the sentence or other disposition– all entered in the case record, reduced to a written document,

generally known as the judgment

• Technically, pronouncement of judgment is made whether there is acquittal or conviction, – but in many jurisdictions, it is synonymous with the

pronouncement of the sentence.

VerdictPronouncement of Judgement



• In a felony conviction, presence of the defendant is required unless he/she cannot be located after due diligent search.– in this case, pronouncement of judgment may be made in

his/her absence

• In misdemeanors, most jurisdictions permit judgment in the absence of the defendant.

• Jurisdictions vary somewhat in the time within which the pronouncement of judgment must take place after a guilty plea is entered or a guilty verdict is returned.




• In misdemeanor convictions in some jurisdictions, the pronouncement may be made immediately.

• Others provide pronouncement may not occur in fewer than six hours and not more than five days. – the six-hour limit allows time for a convicted defendant to

arrange personal affairs before serving time

• In felony convictions, a considerable delay is usually permitted in the pronouncement of judgment. – to permit time for a presentence investigation, in order that a

more equitable sentence may be imposed, but usually not longer than a month




• It is to the advantage of society and the convicted to have sentence pronounced without unnecessary delay.– the defendant is entitled to know the sentence as soon as

possible in order that the term may begin – in society’s interest, there is little comfort in having a felon

free on bail who may be in a position to commit other crimes

• In many jurisdictions, the judge must inquire:– “Is there any legal reason why judgment should not be

pronounced?”

• Some jurisdictions feel the inquiry is useless, and the defendant entitled the motion any time after the verdict.

VerdictArrest of Judgement



• Motion for the arrest of judgment is made on statutory grounds, including present insanity of the defendant. – a defendant may not be sentenced while insane

• The motion may be on the grounds there was a defect in the accusatory pleading, not successfully challenged.

• If the motion for arrest of judgment is denied or none is entered, the next step is pronouncement of sentence.

• In most jurisdictions, before sentence is pronounced, the defendant is entitled to make a statement. – generally a plea for leniency/consideration in the sentencing




• If a judge fails to grant the defendant an opportunity to make a statement, sentence may be set aside on appeal.

• The case does not have to be retried, but sentence will be set aside and the case be sent back for resentencing– after the defendant has been given an opportunity to speak

• After the defendant has made a plea, if any, to the judge or jury, he/she will be sentenced.

• Before entering into the sentencing procedure, the appeals that may be taken by the defendant or the prosecution should be discussed.




• The defendant’s appeal may be well founded, since some error may have been committed, or the defendant may appeal merely to delay serving the sentence.

• Generally, the defendant must file a notice of appeal within a few days after pronouncement of judgment.

• A defendant has no inherent right to remain free once convicted, as presumption of innocence is lost.

• Whether the defendant remains free or is incarcerated,the judge in most instances will have sentenced him/her. – if on bail, no time will be served until the outcome of appeal

AppealsBy the Defendant



• If the conviction is affirmed or the defendant retriedafter reversal, credit will be given for time incarcerated.

• If the conviction is reversed & the defendant not retried, little can be done to compensate for the time in prison.– other than to clear the name of the accused

• Not all appeals are made immediately after a conviction.• Not all efforts by a defendant to appeal a conviction to an

appellate court are successful. – sufficient grounds must be alleged in order for the appellate

court to hear the appeal

AppealsBy the Defendant



• Upon appeal, the defendant, through counsel or on his/her own, will submit a brief to the appellate court that sets forth the alleged error committed.– with citations of appellate court decisions upholding the

contended error, and transcript of the trial proceedings

• The prosecution will submit a brief to show why the conviction should be affirmed and not reversed.

• The appellate court will review the briefs & transcript. – it may conclude there is no ground for appeal, and deny a

hearing on the matter – if the court feels the appeal worthy, a hearing date will be set

AppealsMethod of Appeal



• At the hearing, the defense attorney and prosecution’s representative will be present to argue their sides. – the defendant is usually not present, since he/she has no

inherent right to be present at an appeal hearing

• After the hearing, the appellate court will consider and determine if conviction should be affirmed or reversed.

• If the appellate court denies a hearing on the appeal, there is little the defendant can do about the decision. – its decision is usually final unless a defendant proves one of

the constitutional guarantees was violated, and then the defendant may eventually appeal to the US Supreme Court.

AppealsMethod of Appeal



• The Supreme Court may grant a hearing in an effort to determine whether there was a violation.– if there was, the Supreme Court will reverse the conviction

• If the Court denies the hearing or affirms conviction, no further appeal can be taken by the defendant.

• If a conviction is reversed the state appellate court or the Supreme Court, the states differ on whether the defendant may be retried.

AppealsRetrial After Reversal



• If reversal is based on a law that is unconstitutional, that jeopardy had attached, or a law is too vague to indicate the violation, there cannot be a retrial.

• If the reversal is based on introduction of illegally seized evidence or an improperly obtained confession, in many states the defendant may be retried.– and the improperly introduced evidence will not be

admissible during the retrial

• The prosecuting attorney has to determine whether the other evidence was sufficient in obtaining a conviction– if not, the charge will undoubtedly be dismissed




• If a defendant gets a conviction reversed on appeal, is retried & convicted, may the judge impose an increased sentence after the new trial?

• The Supreme Court in North Carolina v. Pearce, held that if identifiable misconduct by the defendant took place after the first trial, the judge might impose an increased sentence– but the increase should not be based on the fact that the

defendant has appealed his/her case




• The Court stated :– “Due process of law requires that vindictiveness against a

defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”

– “…due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”

– “…to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.”




• States vary concerning prosecution right of appeal.– a few deny the prosecution any right to appeal, since it would

result in a violation of the guarantee against double jeopardy

– some permit a limited right when the appeal does not involve the double jeopardy guarantee

• Generally, an appeal may be taken on a judge’s order setting aside or dismissing an accusatory pleading.

• An appeal may also be taken on a grant of a new trial, an arrest of judgment, or a modification of a verdict or punishment imposed.

AppealsBy the Prosecution



• In most states, the prosecution has no right to appeal a case when an acquittal verdict has been rendered. – as stated in Washington v. Arizona, acquittal is final

regardless of how erroneously it may have been arrived at

– a few states do allow an appeal by the prosecution after a verdict of acquittal has been returned

• The appeal is followed when the prosecution alleges that a serious error was made by the judge on a ruling of law or procedure. – permitted so guidelines may be established for future cases,

but an appellate court has no authority to reverse the acquittal




• An increasing number of states allow the prosecution to appeal a judge’s order suppressing evidence. – generally held that appeal may be taken only on an order

suppressing evidence that was made before the trial began and may not be taken during the trial

• Some states do not permit an appeal of an order suppressing evidence made even before the trial.

• These courts hold that the prosecution is no more disadvantaged by an erroneous ruling before the trial than one during the trial– when such ruling leads to an acquittal




• It is paradoxical to permit a defendant to appeal a conviction resulting from a voluntary plea of guilty– but some states do permit a defendant to appeal a guilty plea

based on some alleged constitutional, jurisdictional, or other grounds concerning the legality of the proceedings

• A defendant may allege the judge failed to explain significance of the guilty plea as required by Boykin v. Alabama.

• When the trial judge advises a defendant as to his/her rights before accepting a guilty plea, the advisement is considered as the “Boykin advisement.”

AppealsGuilty Plea - Boykin Advisement



• Judges of appellate courts are generally referred to as “justices,” and their numbers vary from one state to another, as well as one appellate court to another.

• Many states have only a single appellate court.– generally referred to as the supreme court

• Other states have a bilateral appellate court system.– in which there is an appellate court and a supreme court

• Usually three justices will compose an appellate court,– the supreme court varies, usually from five to nine justices

• Only a majority of justices must agree on a decision.

Appellate Court Citations



• Once the decision is made, one of the majority justices will put the decision in writing, stating whether the conviction was upheld or reverse and the reasoning.

• A dissenting justice may decide to write a dissenting opinion, setting forth reasons for disagreement.

• Decisions by appellate courts are recorded in official publications to act as guidelines for future cases.

• Each decision is given a citation number in order that the decision may be filed, indexed, and located by those having occasion to refer to a particular decision.

Appellate Court CitationsRecording Court Decisions



• A typical example of an appellate court citation: • State v. Tison, 142 Ariz. 446 (1999).

– State v. Tison is the title of the decision

– 142 refers to the volume number of the official record

– Ariz. is an abbreviation for the state of Arizona, indicating that the decision is that of the Arizona Supreme Court

– 446 is the page number where the decision begins

– 1999 is the date or year in which the decision was handed down by the Arizona Supreme Court

Appellate Court CitationsExample Citation



• In addition to official publications, decisions are included in publications of private companies.

• In order that a particular decision may be more readily located by a judge or an attorney, both the official citation and the citation of private companies are included when a case decision is referred to. – West Publishing Company in St. Paul, Minnesota, publishes

the decisions of the supreme courts of the various states

• Decisions are reported by geographic areas, in a system known as the National Reporter System.

Appellate Court Citations



• Returning to State v. Tison, 142 Ariz. 446, there maybe the additional citation of 690 P.2d 747 (1999). – P. indicates the decision can be located in the Pacific Reporter

of the National Reporter System

– 2d indicates the second series of the Pacific Reporter volumes

• If a decision is handed down by the US Supreme Court the following is an example of the official citation that would be used: Batson v. Kentucky, 476 US 79 (1986).

• Published by West Publishing Company in the Supreme Court Reporter, abbreviated as S.Ct., the Batsondecision would be cited as 106 S.Ct. 1712.

Appellate Court CitationsPrivate Publication Example



• The Lawyers Cooperative Publishing Company also publishes the US Supreme Court decisions in a publication known as the Supreme Court Reporter Lawyer’s Edition, abbreviated as L.Ed. – the Batson decision may be cited as 90 L.Ed.2d 69

• Or a decision may carry all three citations as follows: Batson v. Kentucky, 476 US 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

• In states with an appellate court below the supremecourt, decisions of these appellate courts are also published in an official publication.

Appellate Court CitationsPrivate Publication Example



• The term verdict means a true declaration.• In a bench trial, the judge decides the verdict.• In a jury trial, the jury decides the verdict.• If the judge believes that the prosecution has failed to

establish the guilt of the defendant, the judge should enter a directed verdict of acquittal.

• A mistrial occurs when, because of an event, the judge concludes that a fair trial is impossible.

Important topics for this chapter…

SUMMARY



• The pronouncement of judgment is normally considered the oral sentencing of the defendant by the judge in open court, but technically it also includes the written judgment of the judge.

• The defendant may appeal his or her conviction or sentence or both.

• The prosecution has only limited rights of appeal.

Important topics for this chapter…

SUMMARY(cont.)

Chapter EndChapter End

chapter fifteen the verdict and appeals chapter fifteen the verdict and appeals in this court...

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