Defendant is advised of the charges they are facing, and if bond is an option, the amount is set. First degree murder charges prevent the setting of a bond unless after a hearing, the prosecution fails to prove that the proof is evident or the presumption great that the defendant committed first degree murder, a burden of proof greater than probable cause but less than proof beyond a reasonable doubt. The defendant is not required to enter a plea during the advisement.
Serious felony charges entitle the defendant to a Preliminary Hearing, in which the defense gets to challenge whether probable cause exists to "bind over" the case for trial, providing the defense the opportunity to challenge the prosecution's evidence. The burden of proof is on the prosecution to establish probable cause that the defendant committed the crimes, a relatively low standard. The rules of evidence are "relaxed" at preliminary hearings.
Arraignment and pretrial proceedings
Arraignment is the step in which the defendant enters a plea of guilty or not guilty, including not guilty by reason of insanity. Generally the defendants always plead "not guilty" in this step regardless of where the case is likely to go. They are permitted to change their plea later if a deal is reached with the prosecution. The arraignment
represents the beginning of the time period deadline by which that decision must be made to seek the death penalty. The pretrial conference or dispositional hearing is one stage when the prosecutor and defendant can reach an agreed-upon guilty plea or pleas, called a plea bargain.
Negotiations which can include dismissing charges which carry harsher or mandatory punishments in order to acquire a guilty plea to other charges to avoid a trial. In a death-penalty eligible case, this might include guilty pleas to first degree murder, which carry mandatory life sentences without parole, to avoid execution as a penalty.
Voir Dire and Opening Statements
VOIR DIRE (JURY SELECTION)
A jury is made up of a pool of people who are over 18 years of age and are otherwise eligible to serve on a jury who at the time of trial, live in the appropriate county). This pool starts much larger than is necessary because the prosecution and defense will whittle down the pool to the requisite number of jurors. Jurors must be able to hear the case without prejudice and it is the job of the prosecution and defense to ensure that the 12 people finally selected will be able to hear only the evidence and consider just that in order to come to a verdict.
As the name suggests, this is the first statement given by the prosecution and the defense to the jury. The attorneys will preview what they will present during the trial, lay out the facts as their evidence presents it and attempt to sway
Presentation of evidence and instructions
PRESENTATION OF EVIDENCE
The prosecution and defense introduce evidence, call witnesses, and conduct what is called direct examination of their witnesses in order to establish facts, confirm those facts or contradict statements made by the opposing side. The opposing side can also cross-examine witnesses in order to challenge or impeach the witnesses in order to further their side of the case.
The judge meets with the attorneys, often in open court, to select the written statements of law, known as instructions, which the jury is ordered to apply to the facts in determining the case. These include the burden of proof, how to assess the credibility of witnesses including experts, and the elements of the offenses, what the prosecution has to prove for each count. Once the judge has decided what instructions to use, he or she will read them to the jury, and each juror will be provided a copy of the written instructions, usually after closing arguments.
Closing arguments and deliberations
The prosecution and defense are given the opportunity to argue their side of the case one more time. The prosecution goes first and last, with the defense argument given in between. The closing argument is generally a little more elaborate as the attorneys seek to highlight the evidence which supports the verdict they seek from the jury. Attorneys often present a theory of what happened and use the evidence to support each step of the process.
The jury is sworn in and then isolated, and in private, will review the evidence, argue interpretations, and hopefully decide on what the final verdict should be. Deliberations can be a very short process if the case is straightforward, or it can be incredibly long process if there is a mountain of evidence to peruse and the situations are complex.
Any verdict of guilty must be unanimous. If there is disagreement between the jurors, the judge can instruct jurors to continue to strive to reach a verdict.
A guilty verdict results in a conviction, and the judge will then order a sentence based on the crimes for which the defendant was found guilty. There is generally a maximum and minimum sentence for each crime. In death penalty cases, the jury determines whether the sentence is life in prison without parole or execution, following a second trial proceeding in which the defense provides evidence of mitigating factors and the prosecution introduces evidence of aggravating circumstances. The jury receives death penalty instructions, and there is a second set of closing arguments. The jury must be unanimous for death; if after deliberation even one juror opposes the imposition of the death penalty, the sentence is life imprisonment.
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