Juries, Trial Procedures, Juries, Trial Procedures, and Examinationsand Examinations

Law, Community Response, and PolicingLaw, Community Response, and Policing

Written by Karmel TannerMay 2010

How a Case moves through CourtHow a Case moves through Court

Types of CasesTypes of Cases

Settling Settling CivilCivil CriminalCriminal

In many parts of the world, civil and In many parts of the world, civil and criminal cases are combined. In the US criminal cases are combined. In the US they are not. they are not.

Settling CasesSettling Cases

Relatively few lawsuits go to trialRelatively few lawsuits go to trial Most civil cases are settled by mutual Most civil cases are settled by mutual

agreement between parties. Disputes agreement between parties. Disputes can be settled at any point in a trial.can be settled at any point in a trial.

Criminal cases can be settled if Criminal cases can be settled if The court orders dismissal or if the The court orders dismissal or if the

government opts to dismiss the casegovernment opts to dismiss the case The defendant may decide to plead guiltyThe defendant may decide to plead guiltyoror A plea bargain is usedA plea bargain is used

Civil CasesCivil Cases

Conflicts between people or Conflicts between people or institutionsinstitutions

Types of civil cases include Divorce, Types of civil cases include Divorce, Child Support, Custody, Personal Child Support, Custody, Personal Injury (car accident), etc Injury (car accident), etc

Criminal CasesCriminal Cases

The Government’s prosecution of The Government’s prosecution of individuals or institutions to enforce individuals or institutions to enforce public codes of behavior as public codes of behavior as embodied in lawembodied in law

An example would be a crime leading An example would be a crime leading to a criminal trial of the defendant, to a criminal trial of the defendant, with victims filing a separate civil suit with victims filing a separate civil suit to recover damages caused by the to recover damages caused by the crimecrime

Jurisdiction and VenueJurisdiction and Venue Venue refers to the county or district within Venue refers to the county or district within

a state or US where the lawsuit is trieda state or US where the lawsuit is tried The have jurisdiction, the court must be The have jurisdiction, the court must be

able to exercise control over the defendant, able to exercise control over the defendant, or the property involved must be located in or the property involved must be located in the area under the court’s control the area under the court’s control Certain actions are transitory (can be tried Certain actions are transitory (can be tried

where the jurisdiction has sufficient contact with where the jurisdiction has sufficient contact with either side and the incident that gave rise to the either side and the incident that gave rise to the suit)suit)

PleadingsPleadings The first step begins what is known as the The first step begins what is known as the pleadings stage stage

of the suit. Formal documents are filed with the court that of the suit. Formal documents are filed with the court that state the parties' basic positions. state the parties' basic positions. Common pre-trial pleadings include: Common pre-trial pleadings include:

ComplaintComplaint (or petition or bill). Frames the issues of the case. (or petition or bill). Frames the issues of the case. Includes various counts - that is, distinct statements of the Includes various counts - that is, distinct statements of the plaintiff’s cause of action - highlighting the factual and legal basis plaintiff’s cause of action - highlighting the factual and legal basis of the suit. of the suit.

Answer Answer This statement by the defendant usually explains why the This statement by the defendant usually explains why the plaintiff should not prevail. It may also offer additional facts, or plaintiff should not prevail. It may also offer additional facts, or plead an excuse. plead an excuse.

ReplyReply Either party may have to file a reply, (an answer to new Either party may have to file a reply, (an answer to new allegations raised in pleadings)allegations raised in pleadings)

CounterclaimCounterclaim The defendant may file a counterclaim, which The defendant may file a counterclaim, which asserts that the plaintiff has injured the defendant in some way, asserts that the plaintiff has injured the defendant in some way, and should pay damages. ("You're suing me? Well then, I'm suing and should pay damages. ("You're suing me? Well then, I'm suing you.") It may be filed separately or as part of the answer. If filed, you.") It may be filed separately or as part of the answer. If filed, the plaintiff must be given the opportunity to respond by filing a the plaintiff must be given the opportunity to respond by filing a reply. reply.

Motions Motions Motions are requests for the judge to make a legal Motions are requests for the judge to make a legal

ruling. Some of the most common pre-trial motions ruling. Some of the most common pre-trial motions include: include: Motion to DiscoverMotion to Discover

A motion by which one party seeks to gain information from A motion by which one party seeks to gain information from the adverse party. the adverse party.

Motion to Dismiss Motion to Dismiss This motion asks the court to dismiss the suit because the This motion asks the court to dismiss the suit because the

suit doesn’t have a legally sound basis, even if all the facts suit doesn’t have a legally sound basis, even if all the facts alleged are proven true. alleged are proven true.

Motion for Summary Judgment (motion for summary Motion for Summary Judgment (motion for summary disposition) disposition)

This motion asks the court for a judgment on the merits of This motion asks the court for a judgment on the merits of the case before the trial. It is properly made where there is the case before the trial. It is properly made where there is no dispute about the facts and only a question of law needs no dispute about the facts and only a question of law needs to be decided. to be decided.

DiscoveryDiscovery

To begin both sides swap information To begin both sides swap information about witnesses and evidence they will about witnesses and evidence they will present at trial, this is called present at trial, this is called discoverydiscovery

Methods include:Methods include: DepositionDeposition SubpoenaSubpoena Having the other side submit a physical Having the other side submit a physical

examexam Asking for a document to be submitted to Asking for a document to be submitted to

determine if the document is genuinedetermine if the document is genuine

Pre-Trial ConferencesPre-Trial Conferences

Held by judges with lawyers presentHeld by judges with lawyers present Can be used to establish a time frame pre-Can be used to establish a time frame pre-

trial activities and set a tentative trial datetrial activities and set a tentative trial date Also used by judges to encourage settling a Also used by judges to encourage settling a

casecase Trial time can be shorten by the judge and Trial time can be shorten by the judge and

lawyers meeting without clients to agree lawyers meeting without clients to agree on undisputed facts or points of lawon undisputed facts or points of law

These agreements are called These agreements are called stipulationsstipulations

Pre-trial Procedures in Criminal Pre-trial Procedures in Criminal CasesCases

Pre-trial procedures in criminal cases follow the general pattern of Pre-trial procedures in criminal cases follow the general pattern of civil cases, but with important variations. civil cases, but with important variations.

The process is apt to be very different depending on the severity The process is apt to be very different depending on the severity of the crime.of the crime.

In general, the more important the offense, the more elaborate In general, the more important the offense, the more elaborate the process. the process.

The most serious crimes are The most serious crimes are felonies, crimes such as robbery, , crimes such as robbery, assault with a deadly weapon, and sexual assault, for which the assault with a deadly weapon, and sexual assault, for which the punishment on conviction is imprisonment at least a year, usually punishment on conviction is imprisonment at least a year, usually in a state or federal penitentiary. in a state or federal penitentiary.

Misdemeanors are less serious crimes, such as simple assault, are less serious crimes, such as simple assault, driving while intoxicated, and trespassing, for which punishment driving while intoxicated, and trespassing, for which punishment on conviction could be a term of incarceration of less than a year, on conviction could be a term of incarceration of less than a year, usually in a local jail. usually in a local jail.

Traffic infractions and Traffic infractions and petty misdemeanorspetty misdemeanors include minor include minor moving violations, parking violations and littering. They’re usually moving violations, parking violations and littering. They’re usually just punished by fines. just punished by fines.

Bringing the ChargeBringing the Charge

Criminal Charges are put against Criminal Charges are put against someone in one of three wayssomeone in one of three ways Indictment – voted by a grand juryIndictment – voted by a grand jury Information – filed by the prosecuting Information – filed by the prosecuting

attorney alleging a crime was attorney alleging a crime was committedcommitted

Citation – given to an individual for a Citation – given to an individual for a petty misdemeanor or other minor crimepetty misdemeanor or other minor crime

Arrest ProceduresArrest Procedures

A person can be arrested without a A person can be arrested without a warrant, and may be held a brief timewarrant, and may be held a brief time Usually no more than 48 hoursUsually no more than 48 hours To hold the person beyond that time either To hold the person beyond that time either

an an initialinitial or or first appearancefirst appearance or or arraignmentarraignment before a judge or magistrate before a judge or magistrate must be donemust be done

Miranda rights must be read to the Miranda rights must be read to the person being taken into custody in order person being taken into custody in order for any question of the person to be for any question of the person to be used as evidenceused as evidence

Pre-Trial Court Appearances in a Pre-Trial Court Appearances in a Criminal CaseCriminal Case

It’s especially difficult to generalize It’s especially difficult to generalize about this subject, since so much about this subject, since so much depends on a particular state’s depends on a particular state’s procedures, whether it typically uses procedures, whether it typically uses a grand jury to bring charges, etc. a grand jury to bring charges, etc. Here’s the procedure used with some Here’s the procedure used with some variations in many states in which a variations in many states in which a prosecutor files charges without a prosecutor files charges without a grand jury.grand jury.

BailBail Amount of money defendants must post in Amount of money defendants must post in

order to be released from custody until their order to be released from custody until their trialtrial

The purpose is to ensure defendants for trial The purpose is to ensure defendants for trial and all hearings and is returned to after the and all hearings and is returned to after the trial is over, some states withhold a trial is over, some states withhold a processing feeprocessing fee

Bail is decided by the judge weighting Bail is decided by the judge weighting factors such as:factors such as: Risk of the defendant fleeing Risk of the defendant fleeing Type of crime committedType of crime committed ““Dangerousness” of defendantDangerousness” of defendant Safety of the communitySafety of the community

Bail continued…Bail continued…

The defendant may be released by The defendant may be released by own recognizance (without payment own recognizance (without payment of money)of money) This is decided by the judge or This is decided by the judge or

magistrate usually when the defendant magistrate usually when the defendant has circumstances such as roots in the has circumstances such as roots in the community or a steady job that prevent community or a steady job that prevent fleeing fleeing

Plea BargainingPlea Bargaining

When both sides reach an agreement When both sides reach an agreement outside of court, they are negotiating outside of court, they are negotiating a plea or plea bargaininga plea or plea bargaining Time and expense can be saved by both Time and expense can be saved by both

the prosecutor and defendant the prosecutor and defendant The severity of sentencing can be The severity of sentencing can be

reduced when the defendant pleas reduced when the defendant pleas guilty to a lesser crime in a plea bargainguilty to a lesser crime in a plea bargain

Officers of the CourtOfficers of the Court JudgeJudge

Presides over the courtroom and decides verdict if a jury is not Presides over the courtroom and decides verdict if a jury is not used. used.

Court ClerkCourt Clerk Gives oath to jurors and witnesses, responsible for Gives oath to jurors and witnesses, responsible for

administrative aspects, and is in control of physical evidenceadministrative aspects, and is in control of physical evidence BailiffBailiff

Keeps order in the courtroom, calls witnesses, has charge over Keeps order in the courtroom, calls witnesses, has charge over jury (as directed by the judge), and makes sure no one jury (as directed by the judge), and makes sure no one influences the juryinfluences the jury

Court ReporterCourt Reporter Records word for word everything said as part of formal Records word for word everything said as part of formal

proceedings proceedings LawyersLawyers

Represents clients, whether defendant or plaintiff, zealously as Represents clients, whether defendant or plaintiff, zealously as possible within the formal rules of the Code of Professional possible within the formal rules of the Code of Professional Conduct Conduct

Selecting the JurySelecting the Jury

The trial jury for a case is chosen The trial jury for a case is chosen from a from a venirevenire (jury pool compiled by (jury pool compiled by the court)the court) In many states this is complied by voter In many states this is complied by voter

registration lists or driver license listsregistration lists or driver license lists Juries of 6 to 12 persons are selected, Juries of 6 to 12 persons are selected,

varying from state to state and partly on varying from state to state and partly on the case on trialthe case on trial

Selecting the Jury continued…Selecting the Jury continued… If a lawyer believes a juror is prejudiced If a lawyer believes a juror is prejudiced

about the case, they can ask the judge to about the case, they can ask the judge to dismiss the juror dismiss the juror for causefor cause, dismissal will , dismissal will be decided by the judgebe decided by the judge

Lawyers can also use Lawyers can also use peremptory peremptory challengeschallenges to release jurors for any to release jurors for any reason except basis of race or sex. reason except basis of race or sex. This is determined by the type of lawsuit being This is determined by the type of lawsuit being

tried tried When both sides have agreed on a jury, When both sides have agreed on a jury,

then the jurors are sworn in to try the casethen the jurors are sworn in to try the case

EvidenceEvidence TypesTypes

DirectDirect Eye witness, confession, etc.Eye witness, confession, etc. The defense gives evidence in the same The defense gives evidence in the same

manner as the plaintiff, the plaintiff then has manner as the plaintiff, the plaintiff then has the right the right cross-examinecross-examine, , re-directre-direct, or , or re-re-cross examinecross examine

Circumstantial Circumstantial Appearance of a crime scene, testimony Appearance of a crime scene, testimony

linked to the crime, or physical evidence linked to the crime, or physical evidence suggesting criminal activitysuggesting criminal activity

Direct and Cross ExaminationDirect and Cross Examination

Lawyers for the plaintiff or Lawyers for the plaintiff or government begin government begin direct direct examinationexamination when presenting when presenting evidence by calling witnesses and evidence by calling witnesses and questioning themquestioning them

Cross examinationCross examination is generally is generally limited to questioning only on limited to questioning only on matters raised during direct matters raised during direct examinationexamination

Direct and Cross Examination Direct and Cross Examination Continued…Continued…

Lawyers may call expert witnesses to Lawyers may call expert witnesses to give their opinion and reasoning give their opinion and reasoning based on facts in evidencebased on facts in evidence

In cross examination, lawyers may In cross examination, lawyers may try to reduce credibility of the try to reduce credibility of the witness, witness, impeachingimpeaching the witness on the witness on evidenceevidence

Motion for Directed Motion for Directed Verdict/DismissalVerdict/Dismissal

At the conclusion of the plaintiff's or government's At the conclusion of the plaintiff's or government's evidence, the lawyer will announce that the plaintiff or evidence, the lawyer will announce that the plaintiff or government rests. government rests.

Then, when the jury leaves the courtroom, the defendant's Then, when the jury leaves the courtroom, the defendant's lawyer in a civil case has the option of making a motion for lawyer in a civil case has the option of making a motion for a directed verdict, arguing that his or her client's liability a directed verdict, arguing that his or her client's liability has not been proven by a preponderance of the evidence. has not been proven by a preponderance of the evidence.

In a criminal trial, the defendant's lawyer can ask for a In a criminal trial, the defendant's lawyer can ask for a motion to dismiss the charges, arguing that the motion to dismiss the charges, arguing that the government has failed to prove its case. government has failed to prove its case.

In effect, in both kinds of cases, the lawyer asks the judge In effect, in both kinds of cases, the lawyer asks the judge to direct a verdict for the defendant. to direct a verdict for the defendant.

The judge will grant or deny the motion. If granted, the case The judge will grant or deny the motion. If granted, the case is over and the defendant wins. If the denied, as it usually is over and the defendant wins. If the denied, as it usually is, the defense is given the opportunity to present its is, the defense is given the opportunity to present its evidence. evidence.

Presentation of Evidence by the Presentation of Evidence by the Defense Defense

The defense lawyer may choose not to present evidence, in The defense lawyer may choose not to present evidence, in the belief that the plaintiff or government did not prove its the belief that the plaintiff or government did not prove its case. Usually, however, the defense will offer evidence. case. Usually, however, the defense will offer evidence.

In a criminal case, the witnesses presented by the defense In a criminal case, the witnesses presented by the defense may or may not include the defendant.may or may not include the defendant.

Because the Fifth Amendment to the U.S. Constitution Because the Fifth Amendment to the U.S. Constitution protects against self-incrimination, the prosecution cannot protects against self-incrimination, the prosecution cannot require the defendant to take the stand and explain what require the defendant to take the stand and explain what happened, nor can it comment or speculate on the reasons happened, nor can it comment or speculate on the reasons the defendant has chosen not to testify. The jury will be the defendant has chosen not to testify. The jury will be instructed not to take into account the fact that the instructed not to take into account the fact that the defendant did not testify. defendant did not testify.

The defense presents evidence in the same manner as the The defense presents evidence in the same manner as the plaintiff or state, and the plaintiff or government in return plaintiff or state, and the plaintiff or government in return has the right to cross-examine the defense's witnesses. has the right to cross-examine the defense's witnesses. Re-direct and and re-cross examinationre-cross examination also are permitted. also are permitted.

RebuttalRebuttal

At the conclusion of the defendant's case, At the conclusion of the defendant's case, the plaintiff or government can present the plaintiff or government can present rebuttal witnesses or evidence to refute rebuttal witnesses or evidence to refute evidence presented by the defendant. This evidence presented by the defendant. This may include only evidence not presented may include only evidence not presented in the case initially, or a new witness who in the case initially, or a new witness who contradicts the defendant's witnesses.contradicts the defendant's witnesses.

Final Motions Final Motions After all the evidence has been presented and the After all the evidence has been presented and the

jury has left the courtroom, either side may move jury has left the courtroom, either side may move for a directed verdict. If the motion is granted the for a directed verdict. If the motion is granted the trial is over; if not, the presentation of evidence is trial is over; if not, the presentation of evidence is complete and the case is ready to be submitted complete and the case is ready to be submitted to the jury. to the jury.

Closing ArgumentsClosing Arguments The lawyers’ closing arguments or The lawyers’ closing arguments or summationssummations discuss the evidence and discuss the evidence and

properly drawn inferences. The lawyers cannot talk about issues outside properly drawn inferences. The lawyers cannot talk about issues outside the case or about evidence that was not presented.the case or about evidence that was not presented.

The judge usually indicates to the lawyers before closing arguments begin The judge usually indicates to the lawyers before closing arguments begin which instructions he or she intends to give the jury.which instructions he or she intends to give the jury.

In closing arguments the lawyers can comment on jury instructions and In closing arguments the lawyers can comment on jury instructions and relate them to the evidence.relate them to the evidence.

The lawyer for the plaintiff or government usually goes first. The lawyer The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail or her side, showing how it proved what he or she had to prove to prevail in the case.in the case.

The defense then presents its closing arguments. The defense lawyer The defense then presents its closing arguments. The defense lawyer usually answers statements made in the plaintiff's or government’s usually answers statements made in the plaintiff's or government’s argument, points out defects in their case and sums up the facts favorable argument, points out defects in their case and sums up the facts favorable to his/her client.to his/her client.

Because the plaintiff or government has the burden of proof, their lawyer is Because the plaintiff or government has the burden of proof, their lawyer is then entitled to make a concluding argument, sometimes called a then entitled to make a concluding argument, sometimes called a rebuttal. .

Occasionally the defense may choose not to make a closing statement. If Occasionally the defense may choose not to make a closing statement. If so, the plaintiff or government loses the right to make a second argument. so, the plaintiff or government loses the right to make a second argument.

Instructions to the JuryInstructions to the Jury

The judge instructs the jury about the The judge instructs the jury about the relevant laws that should guide its relevant laws that should guide its deliberations. This sometimes occurs before deliberations. This sometimes occurs before closing argumentsclosing arguments Commonly referred to as the judge's Commonly referred to as the judge's chargecharge to to

the jurythe jury The judge will point out that his or her The judge will point out that his or her

instructions contain the interpretation of instructions contain the interpretation of the relevant laws that govern the case; the relevant laws that govern the case; jurors determine the facts and reach a jurors determine the facts and reach a verdict, within the guidelines of the law as verdict, within the guidelines of the law as determined by the judge determined by the judge

MistrialsMistrials Trials not successfully completedTrials not successfully completed

Reasons for a mistrial includeReasons for a mistrial include death of a juror or attorney death of a juror or attorney an impropriety in the drawing of the jury an impropriety in the drawing of the jury

discovered during the trial discovered during the trial a fundamental error prejudicial to the a fundamental error prejudicial to the

defendant that cannot be cured by defendant that cannot be cured by appropriate instructions to the jury appropriate instructions to the jury

juror misconductjuror misconduct the jury's inability to reach a verdict the jury's inability to reach a verdict

because of deadlockedbecause of deadlocked

Jury DeliberationsJury Deliberations After receiving the instructions and hearing the final arguments, the jury After receiving the instructions and hearing the final arguments, the jury

retires to the jury room to begin deliberating. In most states the first order retires to the jury room to begin deliberating. In most states the first order of business is to elect one of the jurors as the of business is to elect one of the jurors as the forepersonforeperson or or presiding presiding juror juror

to preside over discussions and votes of the jurors, and often to deliver the to preside over discussions and votes of the jurors, and often to deliver the verdict. verdict.

If the jury will have a question about the evidence or the judge's If the jury will have a question about the evidence or the judge's instructions this happens, the jury will give a note to the bailiff to take to instructions this happens, the jury will give a note to the bailiff to take to the judge. The judge may respond to the note, or may call the jury back the judge. The judge may respond to the note, or may call the jury back into the courtroom for further instructions or to have portions of the into the courtroom for further instructions or to have portions of the transcript read to them.transcript read to them.

Any communication between the judge and jury should be in the presence Any communication between the judge and jury should be in the presence of lawyers for each side or with their knowledge.of lawyers for each side or with their knowledge.

In most cases, the verdict in a criminal case must be unanimous. Federal In most cases, the verdict in a criminal case must be unanimous. Federal cases require a unanimous decision. cases require a unanimous decision.

If the jury cannot come to a decision by the end of the day, the jurors may If the jury cannot come to a decision by the end of the day, the jurors may be be sequesteredsequestered..

If the jurors cannot agree on a verdict, a If the jurors cannot agree on a verdict, a hung juryhung jury results, leading to a results, leading to a mistrial. mistrial.

The case is not decided, and it may be tried again at a later date before a The case is not decided, and it may be tried again at a later date before a new jury, or the plaintiff or government may decide not to pursue the case new jury, or the plaintiff or government may decide not to pursue the case further and there will be no subsequent trial. further and there will be no subsequent trial.

VerdictVerdict After reaching a decision, the jury notifies the bailiff, who notifies After reaching a decision, the jury notifies the bailiff, who notifies

the judge. Participants reconvene in the courtroom and the the judge. Participants reconvene in the courtroom and the decision is announced. The announcement may be made by either decision is announced. The announcement may be made by either the foreperson or the court clerk. the foreperson or the court clerk.

Possible verdicts in criminal cases are “guilty” or “not guilty.” Possible verdicts in criminal cases are “guilty” or “not guilty.” In a civil suit, the jury will find for the plaintiff or the defendant. In a civil suit, the jury will find for the plaintiff or the defendant.

If the jury finds for the plaintiff, it will also usually set out the amount If the jury finds for the plaintiff, it will also usually set out the amount the defendant should pay the plaintiff for damages, often after a the defendant should pay the plaintiff for damages, often after a separate hearing concerning damages. separate hearing concerning damages.

The jury will also make a decision on any counterclaims that may The jury will also make a decision on any counterclaims that may be part of the case. be part of the case.

The lawyer for either party may ask that the jury be The lawyer for either party may ask that the jury be polled, the , the request usually comes from the losing party. Meaning each juror request usually comes from the losing party. Meaning each juror will be asked if he or she agrees with the decision, as announced. will be asked if he or she agrees with the decision, as announced. This is to make sure that the verdict announced is the actual This is to make sure that the verdict announced is the actual verdict of the jury.verdict of the jury.

After the decision is read and accepted by the court, the jury is After the decision is read and accepted by the court, the jury is dismissed, and the trial is over. dismissed, and the trial is over.

Motions after VerdictMotions after Verdict Motions permitted after a verdict is announced differ from Motions permitted after a verdict is announced differ from

state to state. state to state. A A motion in arrest of judgmentmotion in arrest of judgment questions the sufficiency of questions the sufficiency of

the indictment or information in a criminal case and asks the indictment or information in a criminal case and asks that the judgment not be enforced. that the judgment not be enforced.

A A motion for judgment notwithstanding the verdictmotion for judgment notwithstanding the verdict is the is the equivalent in civil cases to the motion in arrest of judgment. equivalent in civil cases to the motion in arrest of judgment. It may be made after the jury's decision is announced but It may be made after the jury's decision is announced but before a judgment is entered. This motion asks the judge to before a judgment is entered. This motion asks the judge to enter a judgment for the losing party despite the decision of enter a judgment for the losing party despite the decision of the jury. the jury.

A A motion for a new trialmotion for a new trial asks for a new trial to be granted, asks for a new trial to be granted, based on errors committed by the judge during the trial. In based on errors committed by the judge during the trial. In some states, the losing party must make a motion for a some states, the losing party must make a motion for a new trial before filing an appeal. new trial before filing an appeal.

JudgmentJudgment The decision of the jury doesn’t take effect until the judge The decision of the jury doesn’t take effect until the judge

enters a enters a judgmentjudgment on the decision - an order that it be on the decision - an order that it be filed in public records. filed in public records.

In a civil suit, the judge may have the authority to increase In a civil suit, the judge may have the authority to increase or decrease the amount of damages awarded by the jury, or decrease the amount of damages awarded by the jury, or make some other modifications before entering or make some other modifications before entering judgment. judgment.

In criminal cases, the judge generally has no authority to In criminal cases, the judge generally has no authority to modify the verdict.modify the verdict.

If the defendant doesn’t pay the damages awarded to the If the defendant doesn’t pay the damages awarded to the plaintiff in a civil case, the plaintiff may ask for an plaintiff in a civil case, the plaintiff may ask for an execution of the judgment.of the judgment.

The clerk of the court in such a case will deliver the The clerk of the court in such a case will deliver the execution to the sheriff, commanding him to take and sell execution to the sheriff, commanding him to take and sell the property of the defendant and apply that money to the the property of the defendant and apply that money to the amount of the judgment. amount of the judgment.

SentencingSentencing If the defendant is convicted in a criminal case, the judge If the defendant is convicted in a criminal case, the judge

will set a date for sentencing. will set a date for sentencing. Before that time, a pre-sentence investigation will take Before that time, a pre-sentence investigation will take

place to help the judge determine the appropriate sentence place to help the judge determine the appropriate sentence from the range of possible sentences set out in the from the range of possible sentences set out in the statutes. statutes.

The pre-sentence investigation may consider the The pre-sentence investigation may consider the defendant's prior criminal record, family situation, health, defendant's prior criminal record, family situation, health, work record, and any other relevant factor. work record, and any other relevant factor.

In most states and in the federal courts, only the judge In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in exception is that in most states juries impose sentence in cases where the death penalty is a possibility.) cases where the death penalty is a possibility.)

The federal courts and some states have sentencing The federal courts and some states have sentencing guidelines to guide judges in determining appropriate guidelines to guide judges in determining appropriate sentences and to encourage uniformity. sentences and to encourage uniformity.

AppealsAppeals A losing party does not have an automatic right of appeal. There A losing party does not have an automatic right of appeal. There

generally must be a legal basis for the appeal such as an alleged generally must be a legal basis for the appeal such as an alleged material error in the trial.material error in the trial.

In a civil case, either party may appeal to a higher court.In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in In a criminal case, only the defendant has a right to an appeal in

most states. Appeals by the prosecution after a verdict are not most states. Appeals by the prosecution after a verdict are not normally allowed because of the prohibition in the U. S. normally allowed because of the prohibition in the U. S. Constitution against Constitution against double jeopardydouble jeopardy, or being tried twice for the , or being tried twice for the same crime.same crime.

After using all rights of appeal on the state level, criminal After using all rights of appeal on the state level, criminal defendants convicted in state courts may file a right of defendants convicted in state courts may file a right of habeas corpus in the federal courts in an attempt to show that in the federal courts in an attempt to show that their federal constitutional rights were violated. their federal constitutional rights were violated.

An appeal is An appeal is notnot a retrial or a new trial of the case. a retrial or a new trial of the case. The appeals courts do not usually consider new witnesses or new The appeals courts do not usually consider new witnesses or new

evidence. Appeals in either civil or criminal cases are usually evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law.or errors in the judge's interpretation of the law.

Appeals continued…Appeals continued… The party appealing is called the The party appealing is called the appellantappellant, or , or petitionerpetitioner. The other . The other

party is the party is the appelleeappellee or or respondentrespondent. . The appeal is instituted with the filing of a The appeal is instituted with the filing of a notice of appealnotice of appeal.. This filing marks the beginning of the time period within which the This filing marks the beginning of the time period within which the

appellant must file a appellant must file a briefbrief, a written argument containing that side's , a written argument containing that side's view of the facts and the legal arguments in seeking a reversal of the view of the facts and the legal arguments in seeking a reversal of the trial court.trial court.

The appellant may then file a second brief answering the appellee's The appellant may then file a second brief answering the appellee's brief. brief.

Appeals courts may make their decision on the basis of the written Appeals courts may make their decision on the basis of the written briefs. briefs.

Sometimes, they hear Sometimes, they hear oral argumentsoral arguments before deciding a case. before deciding a case. Often the court will ask that the case be set for oral argument, or one Often the court will ask that the case be set for oral argument, or one

of the parties will request oral argument.of the parties will request oral argument. In the U.S. Supreme Court, for example, an hour is set for oral In the U.S. Supreme Court, for example, an hour is set for oral

argument of most cases, which gives each side's lawyers about half an argument of most cases, which gives each side's lawyers about half an hour to make their oral argument and answer questions.hour to make their oral argument and answer questions.

In the federal courts of appeals, the attorneys are often allotted less time In the federal courts of appeals, the attorneys are often allotted less time than an hour.than an hour.

10- or 15-minute arguments are common. 10- or 15-minute arguments are common.

Appeals continued…Appeals continued… The appellate court determines if errors occurred in applying the law at the The appellate court determines if errors occurred in applying the law at the

lower court level. lower court level. It generally will reverse a trial court only for an error of law. Not every error It generally will reverse a trial court only for an error of law. Not every error

of law is cause for a reversal. of law is cause for a reversal. Some are Some are harmless errorsharmless errors that did not prejudice the rights of the parties that did not prejudice the rights of the parties

to a fair trial.to a fair trial. An error of law, such as admitting improper evidence, may be determined An error of law, such as admitting improper evidence, may be determined

to be harmful and therefore known as a to be harmful and therefore known as a reversible errorreversible error. . After a case is orally argued or presented for judgment, the appeals court After a case is orally argued or presented for judgment, the appeals court

judges will meet to discuss the case. judges will meet to discuss the case. Appellate courts often issue written decisions. Appellate courts often issue written decisions. At the conference, one judge will be designated to write an opinion. At the conference, one judge will be designated to write an opinion. The opinion may go through several drafts before a majority of the court The opinion may go through several drafts before a majority of the court

agrees.agrees. Judges disagreeing with Judges disagreeing with majority opinionmajority opinion may issue a may issue a dissenting dissenting

opinionopinion.. Judges agreeing with the result of a majority decision but disagreeing with Judges agreeing with the result of a majority decision but disagreeing with

the majority's reasoning may file a the majority's reasoning may file a concurring opinionconcurring opinion.. Occasionally the appeals court will simply issue an unsigned opinion, called Occasionally the appeals court will simply issue an unsigned opinion, called

per curiamper curiam (by the court). (by the court).

Appeals Continued…Appeals Continued… If appeals court affirms the lower court's judgment, the case ends, unless If appeals court affirms the lower court's judgment, the case ends, unless

the losing party appeals to a higher court.the losing party appeals to a higher court. The lower court decision also stands if the appeals court simply dismisses The lower court decision also stands if the appeals court simply dismisses

the appeal (usually for reasons of jurisdiction). the appeal (usually for reasons of jurisdiction). If the judgment is reversed, the appellate court will usually send the case If the judgment is reversed, the appellate court will usually send the case

back to a lower court (back to a lower court (remandremand it) and order the trial court to take further it) and order the trial court to take further action.action.

It may order: It may order: A new trial be held A new trial be held The trial court's judgment be modified or correctedThe trial court's judgment be modified or corrected The trial court reconsider the factsThe trial court reconsider the facts Take additional evidenceTake additional evidence Consider the case in light of a recent decision by the appellate court Consider the case in light of a recent decision by the appellate court

In a civil case, an appeal doesn’t ordinarily prevent the enforcement of the In a civil case, an appeal doesn’t ordinarily prevent the enforcement of the trial court's judgment. trial court's judgment.

The winning party in the trial court may order the judgment executed. The winning party in the trial court may order the judgment executed. However, the appealing party can file an However, the appealing party can file an appealappeal or or supersedeas bondsupersedeas bond. . The filing of this bond will prevent, or The filing of this bond will prevent, or staystay, further action on the judgment , further action on the judgment

until the appeal is over by guaranteeing that the appealing party will pay until the appeal is over by guaranteeing that the appealing party will pay or perform the judgment if it is not reversed on appeal. or perform the judgment if it is not reversed on appeal.

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