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Module 5 Assignment

Dance of Justice Chris Cleveland Grand Canyon University November 15, 2011

Module 5 Assignment From the time of arrest until the guilty are sentenced, steps and procedures must be precisely followed in order to ensure the security of justice. Once charges have been filled against the accused, a judge must determine bail amount - if any- and then the intricate dance between the prosecution and defense attorneys begins. Whether the music includes the full orchestra of a jury, or the solo piece of a bench judge must be determined, however the steps of the dance in either case are similar. First the music must be chosen. This choice is typically decided by the defendant and his/ her counsel. Will a jury be easier to sway given the circumstances of the alleged crime? Will the prejudices of a jury against the accused hinder a fair trial and the straightforward plea to a justice seeking judge grant a more positive outcome for the defendant? These possibilities must be weighed before the case is heard in court. Next, the timing is chosen. This decision also must be made by the accused and his/ her counsel. Does the defendant waive the right to a quick and speedy trail, giving the defense counsel more time to ferret out a convincing defense? Is the case of the prosecution so shaky, that a speedy trial will produce reasonable doubt in the guilt of the accused? Whether the case is heard by one or many, relatively soon after the arrest or not, each of the following steps are taken. Both the prosecution and the defense must go through a process of discovery. Any witness statements - expert or otherwise - must be disclosed to the defense as well as laboratory and police reports, and any other pertinent physical material the prosecution plans on using in trial. This disclosure must take place before the trial with reasonably enough time for the defense to find counter evidence. Discovery rules are explicit regarding evidence which may benefit the defense. Because the prosecution has at their disposal the efforts of the arresting investigative team, sometimes it possesses evidence which may cast doubt as to the guilt of the accused, which is known as exculpatory evidence. The U.S. Supreme Court held that the suppression by the prosecution of evidence favorable 2

Module 5 Assignment to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution . (Neubauer, 2010, pg 282)

The defense is not allowed a secret strategy, for they must also disclose names and credentials of any expert witnesses it plans to use in the trial. However, the Fifth Amendment of the Constitution provides that a defendant is protected from self- incrimination, and therefore any proof that the defense has regarding the case does not have to be disclosed, if such evidence is not intended for use in court. Disclosure rules are intended to keep a trial free

from ambush attacks; the goal of a trial is to discover the truth, not necessarily bully a defendant. Two of the possible outcomes of discovery, is a plea bargain, or motions to suppress evidence not properly obtained. Each of these possibilities are initiated by the defense. When the evidence has been vetted, the process of jury selection begins ( if a jury trail has been chosen rather than a bench trial). The number of jurors is determined by state and the type of crime. The first selection process comes from developing the master jury list. This master list must be a reflection of the community; including of race, religion, class, gender, or nationality. (Neubauer, 2010). Many municipalities use the voter registration lists, because this list includes residents who are more likely to be involved in the political - and perhaps translated to justice - process. But because this list does not produce an impartial cross section of the community, other lists may be added including drivers license and telephone lists. From this varied master list, a smaller section is selected. This smaller jury pool is randomly selected and each of those selected are summoned, and those who respond will be whittled down even more through the process of voir dire. This truth finding step is meant to eliminate jurors who may have prejudices against or for the defendant based on the potential jurors background and 3

Module 5 Assignment beliefs on justice. Each potential juror may be interviewed by one, two or all three of the following interviewers: the defense attorney, the prosecuting attorney, the judge. Once the jury has been selected (or the bench trial judge option has been initiated), the prosecution starts the trial off with opening statements. This first crack at the judging parties is granted to the prosecution because on it rests the burden of proving the case beyond a shadow of a doubt. After the prosecution has stated its case, the defense has the option of countering with an opening statement of its own, or waiting to give an opening statement after the prosecution has finished presenting its case. Then begins the prosecutions case-in-chief. The Prosecution calls a witness to the stand, in order to give testimony, and then direct examines the witness. The defense is allowed to cross- examine the witness. Then the prosecution has the chance to re-question the witness in order to clarify any points presented in the cross-examination. This back and forth and back again continues with each witness the prosecution calls forward. Whoever is questioning must be careful because the opposing lawyer may object to the question posed. The judge must decide whether the objection is valid or not, and thus the judge determines the route of the trial. Once the prosecution finishes presenting its case, the defense has an opportunity to request a dismissal of charges based on a lack of evidence. If the judge determines the prosecution has done a reasonable job of presenting evidence, then the defense takes its turn in calling witnesses. Most often, the defense will not call the accused as a witness because of the Fifth Amendment protection against self- incrimination. Each defense witness is direct examined, and then cross- examined by the prosecution, and finally re-questioned by the defense. At the end of the defenses case-in-chief, the prosecution can call rebuttal witnesses. This process enables the prosecution to discredit any of the defense witnesses. After both cases have been presented, the prosecution makes its closing statement. Again, because of the burden of proof, the prosecution gets to speak first and last. After the initial closing argument, the defense gives its closing argument. Final instructions 4

Module 5 Assignment are given to the jury, and then they are dismissed for deliberations. This is when the jury decides whether or not the prosecution has presented its case in such a way that the jury is convinces beyond reasonable doubt that the accused is responsible for committing the crime. If the accused is found guilty, then the sentencing is announced often at a later date. Back and forth and then back again, the dance of a criminal trial has many steps. The prosecution leads in regards to responsibility of proving the accused guilty, and therefore leads in opening statements, calling witnesses and offering closing statements. Whether the trail is heard by a single judge or a jury, the back and forth and back again steps are which provide for the greatest possibility of ensuring justice.

Module 5 Assignment References Newbauer, D (2010), Americas Courts and the Criminal Justice System, Wadsworth Publishing, Florence