Criminal Cases, Part 2

When last we communicated, we were discussing events that happened in the pre-trial stage of a criminal case.

After arraignment, a PRELIMINARY HEARING is held before a judge to determine whether there is probable cause to believe that the accused committed the crime. It revolves around the question: is there enough evidence to "bind the case over" for the grand jury? If not, the judge can dismiss the case. More plea bargaining is occurring during this stage.

It's generally agreed that it's better to plea bargain to a lesser charge than to risk going to trial. If it's a first-time offender, the prosecutor will probably bite on the plea bargain.

So it's on to the grand jury:

In about half the states, grand juries are convened to consider charges against criminal defendants. Here, 23 folks determine if there's enough evidence for trial.

Please note that you only need 12 of them (a simple majority) to vote to indict in order for the case to proceed - they vote to issue what's called a TRUE BILL. If they vote not to indict, it's called a NO BILL.

In 20 states, the prosecutor files a charge called an INFORMATION - the judge then decides at the prelim whether there is enough evidence for a trial.

If there is an indictment, the defendant is then rearraigned - this time before a judge who handles felony cases. If a plea of not guilty is entered, a trial date and bail are set.

Felonies are categorized in CLASSES - A, B, C, D, E. The closer to the start of the alphabet, the more severe the crime.

A note on plea bargaining: in NYC, about 3/4 of all murder arrests are plea bargained. In Philadelphia, about 3/5 are plea bargained.


Then we come to the MOTIONS: to QUASH (challenging the legality of indictment); to issue a BILL OF PARTICULARS (the defense wants more details about the charges); to SUPPRESS (or "toss" and not use at trial evidence that has been obtained illegally, through a bad search); and finally, to CHANGE VENUE (where defendant believes he or she cannot get a fair trial, usually due to extensive publicity, or a complaint about the judge not being able to render a fair decision.

Next is JURY SELECTION. The phrase that pays here is VOIR DIRE, or jury empanelment.

Twelve folks are selected, with a few alternates. Attorneys for both sides can challenge the selection of a juror. They use two types of challenges - PEREMPTORY (challenge with no reasons given; they only have 10 of these to spend) and FOR CAUSE (the attorney must give a reason for why they believe the juror will not be able to decide the case fairly and impartially - maybe the person knows the defendant, or worked for his/her company, or knows their family).

Attorneys look for anything that suggests a juror might not be impartial.

Let's say you're covering a case where a homeowner shot a would-be burglar. An attorney for the defense might ask a juror, "what are your feelings about guns?" or "do you think it's OK for families to keep guns in their homes for protection?"

Shaping the jury is key - and shaping the image of the defendant to elicit some sympathy from the jury. As a journalist, you watch all of this unfold - what's the defendant wearing? How are the attorneys acting? How is the jury reacting? Take the reader into the courtroom with you.


Now we head to TRIAL - you most likely won't cover the whole thing; the best you'll be able to do is cover OPENING and CLOSING STATEMENTS, appearances by key witnesses, and, of course, the VERDICT. You do a lot of this by contacting the CLERK of the court. For every trial, interrogatory, and hearing, there is a TRANSCRIPT (written record) to be had.

OPENING STATEMENTS: Here, the state outlines its case - the charges, the evidence. The defense suggests holes in that argument. Both sides preview the evidence. Cases are, some say, won or lost here. You're giving the jury the critical info for the first time.

Next up, DIRECT EXAMINATION: Here, the prosecutor questions his or her witnesses. Remember that the judge can toss the case if he/she feels a PRIMA FACIE case has not been established (there's not enough proof of a crime).

During CROSS-EXAMINATION, the defense attorney questions the state's witnesses, trying to poke holes in their credibility. If they do a good enough job, the prosecutor may ask for RE-DIRECT, or the chance to reestablish the witness' credibility.

At various points, the defense might ask for a DIRECTED VERDICT of acquittal or dismissal, arguing that the state didn't prove its case.

Then the defense calls its witnesses (REBUTTAL). It's DIRECT, CROSS, and RE-DIRECT all over again. Witnesses can be recalled to clarify or extend their testimony. New witnesses hit the scene only with the judge's OK (both sides submit witness lists before trial).

Next, the closing arguments, or SUMMATIONS - the attorneys summarize the case (and their arguments) for the jury. Pay close attention here - often, these are done with a dramatic flourish.

The judge then CHARGES (not literally) the jury - instructs them about reviewing the evidence, about the law that applies in the case, and lays out the possible verdicts.

The jury then DELIBERATES in another room - sometimes hours, sometimes days, sometimes weeks. If deliberation stretches on, the jury will be SEQUESTERED, or housed, by itself, in a local hotel. Keep close to the jury - you never know when a verdict will be reached. Juries can ask for additional instructions from the judge, or to take a look at material brought up during trial. Some believe that this action favors the defense; the thought being that the prosecutor didn't state his/her case well enough.

One way or the other, note how long the jury is out.

Finally, we reach a verdict. In criminal cases, the jury vote has to be UNANIMOUS. We talked about the possible verdicts - guilty, not guilty, guilty by reason of insanity or mental defect. It's possible that the jury can't come to a unanimous ruling - this is a HUNG JURY, and means that the judge will declare a MISTRIAL. The defendant usually goes free.

If the verdict doesn't go the defense's way, they can ask the judge to SET ASIDE the ruling, or set up a NEW TRIAL.

Make sure you pay close attention to the verdicts as they relate to each COUNT of the indictment. Remember also to use "allegedly" in writing about the case until there is a conviction; it's not cool to convict someone before a verdict is reached. More on this in class.

Two final rules: one, do not fall into the trap of overwhelming the reader with legal terms. Be conversational - don't just rehash the document you've obtained. For example, here is the original criminal indictment against former Congressman Tom DeLay. Read the first two pages - pretty intense, eh? How would you rewrite this for your reader?