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The Rights of the Accused during Trial - Further Readings

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The Adversarial System
American justice is based on the adversarial, or accusatory, system, as opposed to the inquisitional system. Under the latter, a magistrate--or a king orreligious official--takes an active role in determining facts and making judgments, while defense lawyers (assuming any are allowed) remain in the background, only speaking when asked to speak. This description calls forth a numberof images, none of them pleasant: the Spanish Inquisition or various other religious witch hunts, France under Louis XIV, the "kangaroo courts" of Nazi Germany and Stalinist Russia, or the Islamic fundamentalist system in Iran under the Ayatollah Khomeini. It is almost by definition a method in which the accused is guilty until proven innocent.
Under the adversarial system, the roles are reversed: lawyers, both for the defense and the state, take an active part in the proceedings, while the magistrate assumes the passive position of a referee. In both situations, the magistrate maintains control over the courtroom, but in the adversarial scenario,he or she acts merely as the servant of the law, not as its source. Again, almost by definition, it is a system in which the accused is innocent until proven guilty. Thus the burden of proof is on the government, and guilt must beproven beyond all reasonable doubt.
The Burden of Proof
The "beyond all reasonable doubt" phrase, though it is not found in the Constitution, nonetheless remains a bedrock principle of the American legal system. It does not mean, however, that guilt must be proven beyond all doubt. This would be not be possible, any more than it would be possible to provebeyond the shadow of a doubt that the sun will rise in the morning and go down in the evening. The requirement of proving guilt beyond a reasonable doubt, by contrast, is considered to be implied by the Constitution, as the Supreme Court held in In re Winship (1970).
As part of its burden of proof, the prosecution must do a number of things. The Sixth Amendment requires that it inform the accused of the crime for whichhe is charged, and this is interpreted to mean that the accusation must be as explicit as possible. Likewise the notion of due process in the Fifth Amendment is held to imply that the state must provide evidence to the defense--even, or rather especially, if that evidence helps the case of the accused. Forinstance if a prosecutor knows that a key witness has provided evidence which may exonerate the accused, he or she is compelled by law to inform the defense.
By contrast, the accused is not compelled to provide the prosecution with evidence which may help its case against him. On the contrary, the Fifth Amendment guarantees the right against self-incrimination. Not only is the accused not compelled to provide evidence, he is free to withhold it under questioningby "taking the Fifth." This does not mean that he is free to lie; it simplymeans that he is not compelled to take the witness stand, or if he does, he is not compelled to answer questions.
The Right to Counsel
The Sixth Amendment makes a number of guarantees affecting the rights of theaccused both before and during trial, among them the right to legal counsel.The accused may choose to represent himself, though this is seldom advisable.Aside from the obvious fact that a lawyer knows much more about the law thana layman does, there is the simple reality that a person often lacks perspective in matters that relate to him or herself. In most aspects of life, thislack of perspective seldom carries a worse penalty than embarrassment--as forinstance if one were to adopt a new hairstyle that one's friends thought looked ridiculous--but in a legal context, its consequences are far more dire.
If the accused cannot afford a lawyer, one will be appointed for him by, andat the expense of, the state. This was not always so. In Betts v. Brady (1942), the Supreme Court upheld the ruling of a lower court denying legalassistance to an unemployed laborer accused of robbery. In 1963, however, theCourt reversed this ruling in Gideon v. Wainwright, and since then, it has been common practice for indigent (poor) defendants to receive court-appointed counsel even in state trials. Nonetheless, questions concerning thispractice remain, particularly since a lawyer appointed by the court may present disadvantages when compared with his or her counterpart on the prosecution. Usually such lawyers are overworked and underpaid, and whereas an attorneypaid by a client usually takes a case willingly, the assistance of a court-appointed lawyer is compelled by law.
The O. J. Simpson murder trial of 1994, in which a wealthy defendant was ableto pay a fleet of extremely capable lawyers, and an even larger number of experts on various types of evidence, highlights the fact that not all forms oflegal defense are the same. No court could ever provide a defendant with a degree of legal assistance even approaching the levels of Simpson's "Dream Team" and their expert witnesses; nonetheless, the state is required, in addition to supplying legal counsel, to provide funds necessary for the indigent defendant's counsel to gather evidence for his or her case.
Witnesses and the Right of Confrontation
The Sixth Amendment directs that the accused must "be confronted with the witnesses against him" and must "have compulsory process for obtaining witnessesin his favor." The first of these provisions, often called the right of confrontation, is closely tied with another Sixth Amendment right, that of beinginformed of the accusation. It means that any witness whose testimony plays apart in the prosecution's case must personally appear in court, so that thedefendant can hear from that person's mouth the evidence against him.
There may be exceptions, of course, as when a witness has died before the case goes to court. Likewise a number of Supreme Court cases such as Coy v. Iowa (1988) and Maryland v. Craig (1990) have addressed cases of child abuse in which the accuser is a minor, and in which the child's advocatesclaim that the child's appearance in court would compound the psychologicaldamage already incurred in the alleged abuse.
The second of the provisions mentioned above means that the defense has the right to require that anyone who can testify in favor of the accused must appear in court. Allied with this is the idea that the defendant may present anyevidence that he may reasonably use in aid of his case.
Trial by Jury and Other Rights
The Constitution provides for trial by jury not only in the Eighth Amendment,but in Article III. In addition, the Seventh Amendment provides for jury trial in civil cases. Petit juries, as opposed to the grand juries which conductthe hearings to hand down an indictment earlier in the legal process, are usually composed of 12 people chosen from the citizenry at large--thus the oft-quoted phrase "a jury of his peers."
Juries are selected by a process called voir dire, in which both the prosecution and the defense have an opportunity to question prospective jurors. On the basis of a prospective juror's answer, one side or the other may arrange to have that person stricken from the list, as a defense lawyer might doif a prospective juror in a capital case states that she favors the death penalty. Prosecution and defense lawyers may also exercise a limited number orperemptory challenges. Under peremptory challenge, for instance, a lawyer defending a man accused of rape may learn from the record that a prospective juror was herself a victim of rape, and may ask that she be kept off the panel for this reason. Peremptory challenges are sometimes controversial when used to shape the jury by race or gender or other characteristics, as many observers believe the Simpson defense team did.
The size of the jury has been established by tradition, though states have used juries consisting of as few as six members. With Ballew v. Georgia(1978), however, the Court held that a jury of only five members was too small to create a proper atmosphere of deliberation. Indeed, deliberation is oneof the central issues surrounding the operation of the jury: to be effective,its members must spend a sufficient amount of time reviewing the facts in order to reach a verdict. Hand in hand with this idea is the requirement that juries reach a unanimous verdict: according to this logic, serious deliberation is virtually guaranteed in the long process of thought and discussion required for twelve people to agree. Though unanimity is required at a federal level, many states allow "super majorities" of ten or more members, and in Apodaca v. Oregon (1972), the Court upheld a conviction of a defendant by an 11-1 majority.
In some cases the jury reaches a verdict. If a verdict is not reached, a "hung jury" is declared. Such a situation may lead to another trial before a newjury, or it may lead to the case being dismissed. Or at any stage leading upto the jury's deliberation, the judge may declare a mistrial if one of the parties to the case fails to act in accordance with the law--e.g., if a defendant were to claim that their interests were not being protected by their lawyer. A mistrial could also result if a juror were to suddenly stand up in the middle of the trial and say "I think he's guilty." In the case of a mistrial,as with a hung jury, the defendant may be tried again.
But if the conviction is overturned by the court due to insufficiency of evidence resulting in a verdict of "not guilty," the defendant cannot be tried again for the same crime. To do so would constitute "double jeopardy," forbidden under the Fifth Amendment; however, the double jeopardy provision does notmean that a defendant cannot be tried by a different "sovereign"--e.g., by astate court as opposed to a federal court, though this seldom happens in practice. And even if the accused is convicted of the crimes as charged, he is guaranteed the right to appeal his case. Thus, ideally at least, the American system of law allows the accused every possible opportunity to defend himselfagainst the charges against him.
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