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Finally, criminal charges must be lodged against the defendant. Depending on the state, the
charges are called either an indictment (by a grand jury) or information (by a magistrate or police
officer).They must be based on probable cause, preponderance of evidence, or prosecutor’s evidence
that supports a belief in the defendant’s guilt.
In the USA most cases are resolved without a trial. Attorneys for the defence and prosecution
usually reach a plea bargain. The judge must decide whether the guilty plea was freely given and
whether there was some factual basis for the plea, but judicial disapproval of an agreed upon plea is
rare.
BURDEN OF PROOF. At the trial there is crucial difference between criminal and civil cases
in the level of proof required. A civil plaintiff merely needs a preponderance of the evidence; the judge
only needs to find that the evidence favours the plaintiff over the defendant. A successful criminal
prosecution requires proof of guilt beyond a reasonable doubt.
The prosecuting counsel opens the case with a short description of the events of the crime and
calls his witnesses. After taking an oath by the witness the prosecuting counsel begins his examination
by asking the witness his/her name, profession, place of domicile. In English law, witnesses are not
allowed to make lengthy statements to the court. It is the duty of the attorneys for both parties to
examine and cross-examine witnesses.
THE ORDER OF PROCEEDINGS. The session is opened by the court called to order by the
Clerk of the Court. The judge enters. The clerk says: “All rise”. Everyone stands up and waits for the
judge to take his seat. The accused is brought into the dock and the clerk asks for his or her name. The
accused answers with the appropriate plea.
In English law a person is innocent until proven guilty. This means that in a trial the burden of
proof is on the prosecution and if the prosecution cannot establish a reasonable cause for conviction
the court must acquit the accused.
Both the defence and prosecution give their closing arguments, the prosecution going first. The
judge sums up the evidence and instructs the jury on their duties. He reminds the jury that if there is
any doubt at all in their minds they must acquit the defendant. The jury retires to the jury room to
consider the verdict. The verdict “not guilty” does not necessarily mean that the judge or jury believe
the defendant to be innocent. It is simply a finding that there was insufficient evidence to prove guilt
beyond a reasonable doubt.
EVIDENCE. Criminal trial courts have numerous, complex rules about what evidence is
admissible, and how it may be introduced. The rules are supposed to exclude irrelevant, unreliable, or
unfairly prejudicial matters, especially in jury cases (the system presupposes that a judge is less likely
to be swayed by improper evidence). The jury’s verdict is to be based solely on the evidence properly
brought out at the trial. Otherwise proper, highly relevant evidence may be excluded because it was
obtained in violation of a defendant’s constitutional rights. Criminal appeals are often decided on such
so-called technical issues.
APPEALS. The appeal is a petition for review of a case that has been decided by a court of
law. The petition made to a higher court for the purpose of overturning the lower court’s decision. The
specific procedures for appealing can vary greatly depending on the type of case and jurisdiction
where the case was prosecuted. The appeal system is mostly for the benefit of the defendant, but it is
possible for the prosecution to appeal for a retrial.
Appellate courts cannot overturn a verdict simply because they disagree with it
– e.g., with how
the jury weighed the evidence and decided to believe one witness more than another witness. Appeals
tend to focus on problems in the trial, judge’s legal ruling, the instructions to the jury, and the trial
procedures, not simply in the judge’s factual interpretations.
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