Chapter Thirteen
Trial Procedure
Whatever disagreement there may be as to the scope of the phrase “due process of law”
there can be no doubt that it embraces the fundamental conception of a fair trial, with
the opportunity to be heard.
— Oliver Wendell Holmes, in Frank v. Mangum, 237 US 309 (1915)
KEY WORDS
Key terms to understand for this chapter…
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•
•
•
•
•
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• Redirect Examination
Cross-Examination
• Subpoena duces tecum
Depositions
• Syndromes
Direct Examination
Directed verdict
Preponderance of Evidence
Reasonable doubt
Rebuttal evidence
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
After completing this chapter, you should be able to…
• Explain the purposes of opening statements.
• Discuss the concept of reasonable doubt and the burden
of proof.
• Describe the presentation of testimony and the
examination of witnesses.
• Explain the consequences of a finding of not guilty by
reason of insanity.
• List the purposes of subpoenas.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
(cont.)
After completing this chapter, you should be able to…
• Explain the functions of closing arguments.
• Identify the grounds upon which a judge may issue a
directed verdict.
• Discuss the issues concerning syndromes.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Opening Statements
Prosecuting Attorney
• After the jury has been sworn in and the charge read to
them, the prosecution is the first to present its evidence.
– because they have the burden of proof
• Prior to calling witnesses, the judge will ask if the
prosecutor wishes to make an opening statement.
• An opening statement will be made in most instances,
since it provides an opportunity to explain further the
charge against the defendant.
• The opening statement is probably more important in
jury trials as it orients & prepares them for evidence.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Opening Statements
Prosecuting Attorney
• The prosecutor has latitude in referring to the evidence
that he/she plans to introduce during the trial.
– but the statements are not considered facts of the case
• It has been held to be prejudicial error for a prosecutor
to mention evidence known to be inadmissible.
• A defendant is entitled to be tried on facts stated in the
accusatory pleading; any reference to other crimes or
convictions is considered so prejudicial the judge may
declare a mistrial at that time.
– if the judge does not declare a mistrial and the defendant is
convicted, the conviction may be reversed on appeal
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Opening Statements
Defense Attorney
• In some jurisdictions, a judge may delay the defense
opening statement until after the prosecution has
presented its case.
• Many defense attorneys believe it to be a mistake to
make an opening statement before the prosecution has
completed its presentation of the evidence
– since the defense strategy may change
• Making an opening statement immediately after the
prosecutor has made his/her opening statement may
alert the prosecution to an anticipated defense
– most defense attorneys try to avoid this
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Opening Statements
Defense Attorney
• Many defense attorneys waive the opening statement,
as they feel disadvantages outweigh advantages.
– others believe it a mistake not to make an opening statement
immediately following the opening of the prosecutor
• Some theorize the prosecuting attorney will have made
a favorable impression on the jury and it is dangerous
not to challenge that statement immediately.
• These defense attorneys will request the jury to keep an
open mind until the defense has the opportunity to
present contrary evidence.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Reasonable Doubt
• In our system of justice, the defendant in a criminal
case is presumed to be innocent until proved otherwise.
• The Supreme Court has held in a number of cases
proving a criminal charge beyond a reasonable doubt is
constitutionally required.
– though not included in the Bill of Rights
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Reasonable Doubt
In re Winship
• The Court stated in the case In re Winship:
– “…basic in our law and rightly one of the boasts of a free
society—is a requirement and safeguard of due process”
– “…that guilt in a criminal case must be proved beyond a
reasonable doubt and by evidence …consistent with that
standard.
– “…historically grounded rights of our system, developed to
safeguard men from dubious and unjust convictions, with
resulting forfeitures of life, liberty and property.”
– “…a society that values the good name and freedom of every
individual should not condemn a man for commission of a
crime when there is reasonable doubt about his guilt.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Reasonable Doubt
• The term reasonable doubt is familiar to all, yet many
jurors are confused about the real meaning of the term.
– and when reasonable doubt has been proved
• Some courts/statutes state a defendant must be proved
guilty beyond a reasonable doubt & to moral certainty.
• A statute of one state defines reasonable doubt as:
– “… the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that
they cannot say they feel an abiding conviction ..of the truth
of the charge.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Witnesses
• The defendant is entitled to be confronted by witnesses
against him/her, as stated by the Supreme Court in
California v. Green: [this confrontation]
– “…insures that the witness will give his statements under
oath thus impressing him with the seriousness of the matter
and guarding against the lie by the possibility of a penalty
for perjury;
– “…forces the witness to submit to cross examination, the
“greatest legal engine …for the discovery of the truth”
– “…permits the jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his statement,
thus aiding the jury in assessing his credibility.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Witnesses
• Most of the prosecution’s evidence to prove guilt
beyond a will be through testimony of witnesses.
• As indicated the Constitution has been interpreted to
afford a defendant right to confront and cross-examine
all witnesses against him/her.
– however, this right is not absolute
• The US Supreme Court examined another aspect of
this constitutional right when it addressed the issue of
the use of closed-circuit television in child abuse cases
in Maryland v. Craig.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Witnesses
Maryland v. Craig
• Before the case went to trial, the state sought to allow
judge & jury to view the victim via closed-circuit TV.
– the defendant and her attorney not be allowed to physically
confront the victim, but would be able to cross-examine
• The trial court ruled because of the possible distress
that the victims would suffer in seeing the defendant,
closed-circuit television would be authorized.
• The Court held that the Confrontation Clause reflects a
preference for face-to-face confrontations at trial.
– but must occasionally give way to considerations of public
policy and the necessities of the case
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Witnesses
Types of Witnesses
• There are two kinds of witnesses:
• The lay witness is an individual who has some personal
knowledge of the facts of the case derived from
personal perceptions.
• An expert witness is an individual who has knowledge
and skill in a particular field that is beyond the
knowledge of the average person.
– the side calling this witness must qualify him/her as an expert
– a jury may either accept or reject the opinion of the expert
• Establishing qualifications is done via voir dire.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Witnesses
• It is not necessary for the prosecution to call every
person with knowledge about facts of the case.
– but enough witnesses to prove the defendant guilty beyond
a reasonable doubt
• It is difficult to determine how many witnesses this will
take, but a prosecutor will call all witnesses necessary
to establish that a crime was committed.
– known as establishing the corpus delicti
• The prosecutor will decide the sequence of how best to
present the facts in a logical, understandable manner.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Subpeona
• Persons are officially notified to appear in court as
witnesses by a legal document known as a subpoena.
– issued for attendance of prosecution & defense witnesses
• A subpoena may be issued by a judge, prosecuting
attorney, clerk of the court, or public defender.
• Occasionally, a witness will be commanded to bring
books, documents, or other physical evidence to court.
– if so, a “subpoena duces tecum” will be issued to the
witness, including a description of material the witness is to
produce & statement of relevance of the requested evidence
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Subpeona
• It has been held a person owes a duty to society to
appear & testify as a witness in criminal cases.
– because of this, witnesses generally are not compensated
• It is recognized a witness should not suffer undue
financial hardship in performing duty as a witness.
– most jurisdictions provide for the payment of reasonable
expenses to a witness who must travel a great distance
• Once a witness has appeared in court, it is common
practice to have the judge order the witness back
instead of issuing a new subpoena for a new date.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Subpeona
Witnesses Failing to Appear
• Failure of a witness to appear as commanded can bring
about contempt of court charges unless good cause for
not appearing can be shown.
• A witness may also orally agree to appear, but cannot
be held in contempt for failing to be present at the trial.
• In the past, as a subpoena was good only within the
state issued, there was no way to command the
appearance of a witness who was out of the state.
– most states have now adopted the Uniform Act to Secure the
Attendance of Witnesses from without the State in Criminal
Cases
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Subpeona
Excluding Witnesses
• Prior to the time any witnesses testify, the judge must
decide if witnesses may remain in the courtroom or
should be excluded until after they have testified.
• The primary purpose for excluding witnesses is to
prevent them from trying to corroborate the testimony
of other witnesses.
– not always done with an intent to falsify, it may be done
because one witness may be uncertain of some of the facts
• Although excluded, it is almost impossible to keep
them from conversing about their testimony.
– even though the judge admonishes them against such action
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
The Oath
• Before being testifying, an oath must be administered
in which the witness promises to tell the truth.
• In the past, these involved a call to deity to assist the
oath giver in substantiating truthfulness of statements.
– as well as a call for assistance in telling the truth
• It was the general belief that, after such an oath, should
one falsely testify, divine punishment would result.
– and if one did not believe in God, one was considered
incompetent to testify
• Although most jurisdictions presently do not prescribe
wording generally a call to deity is still included.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
The Oath
• Oaths administered to witnesses today are substantially
as follows:
– “Do you hereby solemnly swear to tell the truth, and nothing
but the truth, in the matter now pending before this court, so
help you God?”
• While this oath was once with a hand on a Bible, most
jurisdictions have dispensed with the Bible.
– but the witness is still required to raise his/her right hand
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Affirmation
• Some consider it objectionable to “swear to God”.
– in accommodation, courts permit affirmation to tell the truth
• The court officer will require the witness to raise the
right hand, and will state words to this effect:
– “Do you hereby solemnly affirm to tell the truth and nothing
but the truth in the matter now pending before this court?”
• Whether a witness swears or affirms to tell the truth,
both procedures are technically known as the “oath.”
• A few legal scholars argue the oath is a waste of time.
– since it does not guarantee a witness will testify truthfully
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
• As stated in the Federal Rules of Criminal Procedure,
the wording of the oath may be of any nature that will
awaken the witness to the necessity of telling the truth.
• The witness may be prosecuted for perjury if testimony
is intentionally falsified after the oath is administered.
• Exceptions to administration of oath are small children
and mentally retarded persons
– who may not understand the meaning of the oath
• If a witness refuses to be sworn, a contempt of court
charge can be filed against the witness.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination
• After the oath, the witness will begin testimony.
– facts will be related in the witness’s knowledge of the case
• Prior to any statements about the case, the witness will
be required to state his/her name and correct spelling.
• After the identification the prosecuting attorney will
start the examination.
• Questioning of the witness by the side that calls
him/her is known as direct examination.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination - Narrative
• The prosecuting attorney may request the witness to
relate in his/her own words the facts about the case.
– referred to as the narrative approach
• This permits the witness to tell the story in a logical
form so the jury may be better follow the testimony.
• Unless the witness is familiar with the rules of
evidence, irrelevant material & hearsay evidence
may be included.
– or facts related the prosecuting attorney wishes to avoid
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination - Q & A
• If a witness is shy or perhaps somewhat reluctant to
testify, it may be necessary to revert to the shortquestion-and-answer procedure.
• By asking short, direct questions, the prosecuting
attorney has greater control over the facts related.
– and can limit the testimony to relevant facts
• This form of examination can be time-consuming, and
sometimes becomes boring to the jury.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination - Leading Questions
• During direct examination, the attorney may generally
not ask the witness leading questions, one that indicates
the desired answer to the witness.
• For example, the attorney may ask the witness…
– “You did see the defendant threaten the victim with a knife,
didn’t you?”
– clearly, the attorney wants a yes answer
• By rephrasing, the witness may be asked…
– “Did you see the defendant threaten the victim with a knife?”
– while the attorney may still desire a yes answer, that wish has
not been indicated to the witness, and may answer yes or no
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination - Leading Questions
• Leading questions are not generally permitted because
the witness is usually favorable to the side that calls
him/her.
– thus there may be a tendency to assist that side irrespective
of the truth if a desired answer is indicated
• Limited use of leading questions is permitted in the
examination of children, senior citizens, and mentally
retarded persons in order to assist them in telling their
stories.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Direct Examination - Hostile Witnesses
• Occasionally, a witness called by the prosecution will
display hostility toward the prosecution, making the
expected testimony difficult to obtain.
– the prosecuting attorney may request the judge to declare for
the record that the witness is a hostile witness
• If the witness is declared to be hostile, the prosecuting
attorney may then ask leading questions.
– it is assumed that the witness will answer truthfully, because
of the hostility, even though a desired answer is indicated
• To be declared a hostile witness, a person must display
hostility and uncooperativeness.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Objections to Questions
• During direct examination by the prosecution, the
defense may object to some of the questions asked.
– indicated to the judge, who must rule upon the objection
– the witness should not answer until the judge has ruled
• If the judge believes the objection well founded, he/she
will sustain the objection, meaning the witness may not
answer the question.
• If the judge does not agree with the objection, he/she
will overrule the objection & the witness must answer.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Objections to Questions
• The defense may object to a question for many reasons.
– it may call for an answer that would be hearsay information
– it may be leading, or require the witness to state an opinion
• If the prosecutor asks an improper question or one that
calls for information not admissible, unless the defense
objects the answer is permitted into the case record.
– and generally is not grounds for appeal of a conviction
• For this reason, defense attorneys make frequent
objections during the trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Objections to Questions
• Occasionally, an overzealous witness will answer a
question to which an objection is made before the
judge is able to rule on it.
• If overruled, no serious consequences result.
– other than judge being irritated because he/she didn’t wait
• If the objection is sustained, the answer was improperly
given, and must be stricken from the record.
– and the jury advised to disregard the answer
• Knowing the difficulty of disregarding highly
prejudicial statements, the judge may declare a mistrial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Cross-Examination - Pointer v. Texas
• After the prosecutor has concluded direct examination,
the defense is permitted to cross-examine the witness.
– the primary purpose is to assist in arriving at the truth
– it enables the opposition or adversary to challenge the
witness’s veracity, accuracy, and prejudices
• The right to cross-examination was made mandatory
on the states by the Pointer v. Texas, in which the
Supreme Court stated:
– “…right of an accused to confront the witnesses against him
…is made obligatory on the States by the Fourteenth
Amendment.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Cross-Examination - Pointer v. Texas
• The Court further stated in Pointer:
– “And probably no one, certainly no one experienced in the
trial of lawsuits, would deny the value of cross-examination
in exposing falsehood and bringing out the truth in a trial”
– “…the right of cross-examination is one of the safeguards
essential to a fair trial.”
• If the defense believes the witness told the truth during
direct examination and nothing is to be gained, the
right to crossexamine witness may be waived.
– cross-examination is at best a dangerous procedure for a
defense attorney, as there may more to be lost than gained
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Cross-Examination - Impeachment
• If a witness testified falsely during direct examination,
made prior inconsistent statements, or has colored the
testimony because of some prejudice, these facts may
only be disclosed by cross-examination.
• Cross-examination is necessary so the jury may
disregard the testimony or give it the proper weight.
– devaluation of testimony by cross-examination is referred to
as impeachment in the field of evidence
• Generally, cross-examination is an unpleasant
experience for both the witness and the attorney.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Cross-Examination - Leading Questions
• While leading questions may not generally be asked
during direct examination, they are permitted on crossexamination, if the attorney feels utilizing them is an
advantage.
– leading questions are frequently asked during vigorous crossexamination.
• The reason these questions are permitted during crossexamination is that usually the witness is not favorable
to the side doing the cross-examining,
– and the witness will not give a desired answer, even though
it is indicated, unless it is the truth
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Limited Cross-Examination
• A majority of the states limit the cross-examination to
the facts brought out during direct examination.
– referred to as limited or restricted cross-examination
– witnesses are usually cautioned to confine answers to
questions asked during direct examination and not to
volunteer additional information
• Other states permit the witness to be cross-examined
about any pertinent facts in the case within the
knowledge of the witness.
– known as unlimited or unrestricted cross-examination
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Redirect and Recross-Examination
• After the defense attorney has completed crossexamination, the judge will permit the prosecuting
attorney to further question the witness.
– known as redirect examination, and must be confined to
clarifying facts brought out during cross-examination
• A judge will seldom will permit any new material to
be brought forth during the redirect examination.
– unless the prosecuting attorney believes that redirect
examination will be beneficial, it may be waived
• The same sequence may take place with each witness
called, and criminal trials can become very lengthy.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Refusal to Answer Questions
• The witness must answer all questions asked
throughout the entire examination.
– the exception is that if the answer to a question will
incriminate the witness, the witness may refuse to answer
• An incriminating answer is one subjecting the witness
to prosecution, and the Fifth Amendment provides one
may not be compelled to witness against oneself.
• All other questions must be answered even though the
answer may be embarrassing or life-endangering to the
witness or his/her family.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Refusal to Answer Questions
• Refusal to answer questions occurs more frequently
during cross-examination than direct examination.
• If a witness persists in refusing to answer a question
not incriminating, the entire testimony may be stricken
from the record and the jury advised to disregard it.
• It is held that a witness may not testify to facts that may
be favorable and refuse to testify to those unfavorable.
• There are times when the truth is more important than
witness incrimination by answering a question.
– a witness may be granted immunity from prosecution
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Examination by the Judge and Jury
• Witnesses may also be called by the trial judge if
deemed necessary in the interest of justice.
• Most jurisdictions permit a judge to question witnesses
if such questioning may furnish information not
brought forth by the prosecutor or defense counsel.
• Most judges will permit limited questioning by a juror
if it is felt the questioning is in good faith.
– questioning by jurors is generally not encouraged
• The judge usually will require the juror to write the
question on a slip of paper and he/she will ask it.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Introduction of Physical Evidence
• During crime investigation, officers usually discover
physical evidence, or objects, pertinent to the crime.
– physical evidence may include objects taken during a robbery
or burglary and found in possession of a defendant.
• In almost all instances, the prosecutor attorney will
introduce these objects as evidence to substantiate the
officer’s testimony and to emphasize facts of the case.
• These physical objects must be introduced by witnesses
who can connect the objects with the crime charged.
• Once an object is introduced into evidence, a jury may
examine it & consider it part of the facts of the case.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Viewing the Crime Scene
• There are times when a judge may feel a jury can better
follow testimony of the witnesses if they view the area
in which the crime was committed.
• Under these circumstances, the judge will order the
jury, as a body, to be taken to the crime scene.
– in some jurisdictions is considered as evidence of the case
• The prosecuting attorney, defense attorney, defendant,
and judge must accompany the jury.
• It has been established as improper for a jury to view
the crime scene without authorization from the judge.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Prosecution Rests
• After presentation of all prosecution witnesses and
evidence the believed necessary, the prosecuting
attorney will usually state,
– “The prosecution rests, your honor. . . .”
• This is an indication to those involved in the trial that
the prosecution has presented the evidence it believes
sufficient to convince the jury the defendant is guilty.
– beyond a reasonable doubt
• In other words, the prosecution rests its side of the case
in the hands of the jury, in hope of a favorable verdict.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Judgement of Acquittal
• After the prosecution rests, the defense may present
evidence in its own behalf.
• Before doing so, the usual procedure is for the defense
to request permission to speak to the judge.
– usually granted, to request the jury be excused so a motion
can be made for a judgment of acquittal
• If the judge permits the motion to be argued, the
defense will endeavor to convince the judge the
prosecution failed to establish that a crime was
committed or that the defendant committed it.
– also commonly referred to as a motion for a directed verdict
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Judgement of Acquittal
• The defense attorney may contend that the prosecution
failed to present enough evidence to substantiate, or
uphold, a conviction on appeal.
• If the judge agrees he/she has the authority to take the
case out of the hands of the jury and enter a judgment
of acquittal.
– a bar to further action against the defendant on the charge
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Examination of Witnesses
Directed Verdict
• A few states contend a judge does not have the right to
enter either a motion of acquittal or a directed verdict.
– since the procedure takes the case out of the hands of the
jury, who are the exclusive judge of the facts of the case
• In such states, if a directed verdict is granted, the judge
instructs the jury to return a verdict of not guilty.
– The jury is not bound by this direction in some states, may
disregard the motion and return a verdict of guilty
• The judge may not enter a judgment of conviction nor
direct a verdict of conviction.
– such would deny the defendant the right to a trial by jury
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Defense Presentation
• If the judge does not agree to a judgment of acquittal,
the defense must decide whether to allow the case to go
to the jury or if evidence should be presented in behalf
of the defendant in an effort to create reasonable doubt.
• Generally, if any defense that can be presented, the
defendant’s attorney will present evidence rather than
take a chance on the jury’s returning a guilty verdict.
• If the defendant has admitted guilt to counsel but
refuses to enter a plea of guilty, presenting a defense
may be a difficult task for the defense attorney.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Defense Presentation
Approaches
• If the charge is homicide or aggravated assault, the
defense may attempt to prove self-defense.
• If a case of forceful rape, the defense may allege the
victim consented to the act of intercourse.
• One of the more prevalent defenses is the alibi defense.
• A defense attorney will occasionally endeavor to prove
the defendant is of such good character that a crime as
charged could not have been committed.
– not always an easy defense to present
– one of the few times a defendant’s record may be introduced
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Defense Presentation
Should the Defendant Testify?
• While planning the defense, an attorney must decide
whether the defendant should be permitted to testify
– often not an easy decision; many factors must be considered
– the attorney must consider the impression the defendant may
make on the jury while testifying
• The defendant is treated the same way as any other
witness in most jurisdictions, and witnesses may be
impeached by revealing certain past convictions.
– being aware of the defendant’s past record of convictions
could affect the jury’s verdict
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Defense Presentation
Should the Defendant Testify?
• In the distant past, if adefendant did not take the stand,
failure to do so could be commented on by the judge &
prosecutor as the case was summarized to the jury.
• In Griffin v. California, the Supreme Court held such
comments are improper, since they tend to force the
defendant to be a witness against him/herself.
• The Court pointed out a defendant has a constitutional
right to remain silent, and permitting comment on the
defendant’s failure to testify was a penalty imposed by
the courts for exercising a constitutional privilege.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Defense Presentation
Should the Defendant Testify?
• In most jurisdictions, if the defendant takes the stand
and fails to explain facts that logically should have
been explained, that failure may be commented on by
the judge and the prosecuting attorney.
• Another problem created for a defense attorney arises
when the client insists on taking the stand.
– does a defendant have a right to testify in his or her own
behalf over the objections of counsel
• While not answered in all jurisdictions, a few have held
a defendant does have a right to present evidence in his
or her own behalf, even over the objections of counsel.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Rebuttal by the Prosecution
• After the defense has presented its side and rests, the
prosecution may present additional evidence.
– to meet or rebut that presented by the defense
• Rebuttal evidence is permitted because the prosecutor
will have no advance knowledge of the approach the
defense may take to prove the defendant not guilty.
– the defense may have created some new doubt
– evidence presented by the defense may not have been based
upon actual facts
• To allow some testimony to stand unchallenged by the
prosecution would be an injustice to society.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Rebuttal by the Prosecution
• Generally, no new evidence pertaining to guilt of the
defendant may be presented during the rebuttal.
• The only time additional evidence may be introduced
is when new material evidence has been discovered.
• The prosecution must be in a position to convince the
judge newly discovered evidence was not available
when the prosecution first presented its side of the case.
– and discovery was not due to carelessness, inadequate
investigation, or poor preparation
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Rebuttal by the Prosecution
• The judge may permit the newly discovered evidence
to be introduced.
– sometimes referred to as the rejoinder or defense rebuttal
• After the prosecution has finished rebuttal, the defense
may again make a motion for a judgment of acquittal.
• If this motion is denied, the next procedure, is either
presentation of closing arguments by prosecution and
defense or instruction to the jury on the law of the case.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Rebuttal by the Prosecution
Deposition
• Sometimes a witness is unable to attend court to testify,
yet the testimony of that witness is material to the case.
• Rather than continuing the trial, an out-of-court written
statement, or deposition, under oath, will be taken.
• The opposing side must be notified a deposition is to be
taken at a particular time, date, and place, so they may
be present to cross-examine the witness.
• The deposition is usually in a question-and-answer
form much as the testimony would be given in court,
and read to the jury at the appropriate time during trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
• Not all states permit a separate plea of not guilty by
reason of insanity.
• In states where this plea is not permitted, the insanity
defense is alleged by the defense after the prosecution
rests in the same manner as
other defenses.
– which can surprise the prosecution,
making rebuttal difficult
Andrea Yates (right) sits with her attorney, George Parnham, after
the not guilty by reason of insanity verdict was read in her retrial.
Yates admitted to drowning her five children in a bath tub in 2001
and pleaded guilty by reason of insanity.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
• After presentation of evidence, the defendant alleges
he/she cannot be held criminally liable for the crime,
as he/she was insane at the time of committing the act
– then presents evidence to prove that he/she was insane
– to rebut, the prosecution must prove the defendant was sane
• In jurisdictions permitting a separate plea of not guilty
by reason of insanity, the prosecutor is not surprised.
– and has ample opportunity to prepare to meet the allegation
• Where a separate plea of insanity is permitted, unless
the defendant enters that plea, sanity is presumed.
– and no defense of insanity may be entered.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Burden of Proof
• Some states contend that, by entering the insanity plea,
the defendant has admitted the conduct and not entitled
to the presumption of innocence.
– and the prosecution has no burden of proof on the guilt issue
• To prove insanity, the defense may produce expert
witnesses in psychology to examine the defendant.
– and express opinions on the defendant’s mental state at the
time of the crime.
• The defense may call witnesses acquainted with the
defendant for corroboration with expert opinions.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Burden of Proof
• The amount of proof the defendant must present differs
among states, but it is conceded the defendant does not
have to prove beyond a reasonable doubt that the crime
was committed while he/she was insane.
• After the defendant has presented evidence to prove
insanity, the prosecution must present evidence to
prove the defendant was sane at the time of the act.
– most jurisdictions contend the prosecutor still has the burden
of proving the defendant sane beyond a reasonable doubt
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity
• The ultimate determination to be made is whether the
defendant was in such a state of mind at the time of the
crime that he/she cannot be held legally responsible.
– determining sanity isn’t easy; acceptable tests must be applied
• The problem becomes complicated because it is not
the defendant’s present state of mind that is at issue.
– since the case is going to trial, it has been adjudged that the
defendant is presently sane
• Even knowledgeable experts can give only an opinion
of the mental condition at the time of the crime.
– unless the defendant was under a doctor’s treatment
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity
• Devising a test to accurately establish a defendant’s
mental condition months before has been very difficult.
• For many years in England, the “wild beast test”, also
referred to as the “good and evil test” was used.
• If an accused had no more conception of good and evil
than a wild beast while committing the crime, he could
not be held responsible.
– the test was used until it was replaced by the “right and
wrong” test in 1843
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - M’Naughten
• In 1843, Daniel M’Naughten was indicted for the
murder of Edward Drummond, private secretary to
Sir Robert Peel, Prime Minister of Great Britain.
– M’Naughten mistook Drummond for Peel, whom he felt was
persecuting him
• M’Naughten was found not guilty by reason of
insanity, which generated so much public indignation
the judges were called before the House of Lords.
– and asked to explain the test used to determine his sanity
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - M’Naughten
• The judges stated:
– jurors should be told in all cases that every man is presumed
sane & responsible for his crimes until the contrary is proved
– it must be clearly proved, at the time of the act, the accused
was laboring under such defect of reason, from disease of
mind, as not to know the nature of the act he was doing
– if he did know, he did not know he was doing wrong
• The mode of putting the latter part of the question to
the jury on these occasions has generally been whether
the accused knew the difference between right and
wrong at the time of doing the act.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - M’Naughten
• The M’Naughten test has since been followed in
England and adopted by a majority of states in the US.
• Criticized by some legal scholars & psychologists, it
has been replaced in only
a few states. because it is
felt no better test has yet
been devised.
The murder trial of Daniel M‘Naughten at the
Old Bailey, London, in 1843.
Found not guilty by reason of insanity, he gave
his name to the M‘Naughten Rules of criminal
responsibility in Anglo-American law.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - Parsons v. State
• Because confusion surrounding M’Naughten, in 1887
the landmark case Parsons v. State, court set forth the
modern version of the Irresistible Impulse test.
– a person will be considered insane if, as a result of a disease
of the mind, he/she was unable to control his or her behavior
– as the name implies, if the defendant could prove there was
an impulse he/she could not control, the defendant would be
considered insane
• The current trend is to revert back to the M’Naughten
test, also controversial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - Durham v. US
• In 1954, the US Court of Appeals in Washington, D.C.,
decided the case of Durham v. US, which rationale
some jurisdictions adopted as their test for insanity.
• The court stated the “rule” to determining criminal
responsibility is as follows:
– “…an accused is not criminally responsible if his unlawful
act was the product of mental disease or mental defect.”
– “Whenever there is some evidence that the accused suffered
from a diseased or defective mental condition … the trial
court must provide the jury with guides for determining
whether the accused can be held criminally responsible.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - Durham v. US
• The court further stated:
– “…under the rule now announced, any instruction should in
some way convey to the jury the sense and substance of the
following: ‘If you the jury believe beyond a reasonable doubt
that the accused was not suffering from a diseased or
defective mental condition at the time he committed the
criminal act charged, you may find him guilty.’”
• Problems inherent in the M’Naughten test were present
in Durham, & severely criticized in US v. Currens.
– where the court said it is too vague and indefinite to be
workable in the determination of criminal responsibility
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - The ALI Test
• The other major test is the American Law Institute’s
substantial capacity test, used by the Model Penal
Code, and a growing number of states.
• Section 4.01 of the Model Penal Code is as follows:
– “A person is not responsible for criminal conduct if at the
time of such conduct …he lacks substantial capacity either to
appreciate the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirements of the law.”
– “As used in the Article, the terms mental disease or defect do
not include abnormally manifested only by repeated criminal
or otherwise antisocial conduct.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Test for Sanity - The ALI Test
• M’Naughten requires the defendant to show total
mental impairment, where ALI requires only that he
lack of “substantial capacity” to conform to the
requirements of law.
– that is, lack of self-control
• A number of states now use the “guilty, but mentally
ill” procedure for handling the insanity issue.
– if a finding of guilty results, the jury is asked to determine
whether the defendant is insane
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - The Twinkie Defense
• Starting in the 80s, a range of syndromes that affect the
mental state of the defendant have been presented to
excuse or justify the conduct of the defendant.
– one of the most famous is the Twinkie defense
• In 1979, Dan White was convicted of voluntary
manslaughter for the killing of San Francisco Mayor
George Moscone and Supervisor Harvey Milk.
– originally charged with first-degree murder, White readily
admitted killing the mayor and the supervisor
• White’s defense presented evidence to establish White
had suffered from “diminished capacity”.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - The Twinkie Defense
• According to defense theory, White was incapable of
premeditation, deliberation, and malice required to
obtain a murder conviction due to a “biochemical
change” in his brain
• A defense psychiatrist testified White’s compulsive diet
of candy bars, Twinkies & Cokes was evidence of deep
depression and resulted in excessive sugar intake.
– which caused or aggravated a chemical imbalance in his brain
• The Twinkie defense or syndrome apparently has not
been successfully used since the Dan White trial.
– California has since abolished this defense
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - XYY Syndrome
• Efforts have been made by defense attorneys to utilize
alleged effects of XYY syndrome as an insanity defense.
– on theory that individuals with an abnormal complement of
chromosomes are legally insane & cannot be held criminally
responsible for their acts
• Courts have been rejecting this defense, as geneticists
differ in their opinions concerning the effects.
– the experts hold it cannot be stated with certainty that a
criminal act is the result of an abnormal complement of
chromosomes
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - PMS Syndrome
• Also widely discussed is the premenstrual stress
syndrome (PMS) defense, which has problems.
– the defense must establish that PMS is a disease
– the defense must show the defendant suffers from PMS
– the PMS must cause mental impairment excusing the conduct
• Premenstrual syndrome, or premenstrual tension
(PMT), is believed to affect about 40% of American
women between the ages of twenty and forty.
– symptoms include irritability, anxiety, mood swings,
depression, migraines, fainting, dizziness, and allergies
• There is much skepticism regarding this defense.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - Battered Spouse Syndrome
• Recently, wives who have killed their abusing spouses
have attempted to use the battered spouse defense.
– the 80s film, The Burning Bed, based on a real-life case,
depicted a woman who killed her husband while he slept
– the husband had apparently abused and threatened her, and
when he went to sleep, she set fire to the bed, killing him
• Traditionally, self-defense is not available in these
cases because at the time of the killings, the spouses
were not in imminent danger.
• For the most part, courts have rejected the battered
spouse syndrome as a defense for spousal killings.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
Syndromes - Battered Spouse Syndrome
• A minority of courts have held that the fact the other
spouse was sleeping does not preclude self-defense.
– when courts allow abused persons to use self-defense to
shield liability, it is known as the imperfect self-defense plea
• The imperfect self-defense plea received national
attention when Eric and Lyle Menendez claimed they
had been sexually abused since childhood.
– and therefore found it necessary to kill their mother & father
• There is gradual acceptance that women can be trapped
emotionally in an abusive relationship
– and honestly believe they must kill their abusers to survive
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Not Guilty by Reason of Insanity
• Irrespective of the sanity test or defense applied, if the
jury finds a defendant to have been sane at the time the
crime occurred, the only procedure left is sentencing.
• If the jury finds the defendant was insane when the
crime was committed, the accused is theoretically
entitled to be released.
– in most jurisdictions there will be confinement in a mental
hospital under civil commitment to make certain there is no
threat to society
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
• After both sides have presented evidence, the next
procedure in most jurisdictions are closing arguments
by the prosecuting attorney and the defense attorney.
– a summarization of the evidence presented during the trial
• Some attorneys feel they have no effect on the jury and
are a waste of time, others feel a closing argument may
be the difference between losing & winning a case.
• There is no limit on the length of a closing argument.
– attorneys may take only a few minutes or several days
– the judge has the right to limit the time but cannot be too
restrictive
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
• Usual procedure is for the prosecuting attorney to give
the closing argument first, followed by the defense.
• After the defense has completed its closing argument,
the prosecuting attorney may give a rebuttal argument.
– some jurisdictions reverse this procedure
• It is considered improper for the attorneys to appeal to
sympathy or emotions of the jurors, but arguments
are often a dramatic performance that results in an
emotional appeal.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
Prosecution
• The prosecuting attorney may state the evidence clearly
proves that the defendant is guilty of the crime charged.
• It is prejudicial error for a prosecutor to state that from
personal knowledge, a defendant is known to be guilty
– implying information not brought forth during the trial is in
his/her possession
• The prosecuting attorney has the right to state what the
evidence shows and what conclusions are to be drawn.
• The adverse party cannot complain if the reasoning is
faulty and the deductions are illogical
– as such matters are ultimately for consideration by the jury
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
Prosecution
• It is held that the prosecutor should be circumspect in
remarks concerning the defendant and his/her counsel.
– but use of derogatory epithets does not necessarily represent
misconduct
• The Supreme Court in People v. Jones stated:
– “We recognize that prosecutors, …may be affected by the
tensions of a trial to the point of error and, on occasion, even
to misconduct.”
– “Be that as it may, prosecutors should be ever aware …they
are representatives of the government of whom the public,
including those who are prosecuted, are entitled to expect
a high degree of ethical conduct.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
• Following arguments by the prosecutor, the judge will
often instruct the jury that closing arguments are not to
be considered as evidence.
– and to disregard any statements not based on the evidence
• If a prosecuting attorney indulges in misconduct during
closing arguments, the misconduct could lead to a
mistrial.
– or a reversal of a conviction on appeal
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
Defense
• Technically, the same rules of conduct that apply to the
prosecuting attorney also apply to the defense attorney.
• Since defense counsel misconduct is not appealable if a
defendant is acquitted, the defense attorney often has
considerable freedom in arguing the case to the jury.
– an appeal will often be made to the sympathy of the jury
• Though represented by an attorney, occasionally a
defendant will insist upon making a closing argument
in addition to the one given by the attorney.
– permitted at the judge’s discretion
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Closing Arguments
Rebuttal
• After the defense attorney has concluded the closing
argument for the accused, the prosecuting attorney is
entitled to make a rebuttal closing argument.
• Statements and challenges presented during the defense
attorney’s closing argument can be met.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
Important topics for this chapter…
• One purpose of an opening statement is to orient the
jury to evidence that will follow.
• Because the prosecution has the burden of proof, it
presents its case first.
• The defense may present an opening statement
immediately after the prosecutor's or may delay it until
the defense presents its case.
• The defendant is presumed innocent until his or her
guilt is established beyond a reasonable doubt.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The term beyond a reasonable doubt is difficult to
define and does not mean proof beyond moral certainty.
• The defendant is entitled to confront the witnesses
against him or her. The right of confrontation includes
the right to cross-examine the witness.
• Witnesses are officially notified to appear as witnesses
by the use of subpoenas.
• If a witness voluntarily appears, there is no requirement
to have a subpoena issued.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• Witnesses who fail to appear as ordered by a subpoena
are subject to sanctions for contempt of court.
• Prior to questioning a witness, an oath must be given.
If the witness objects to being sworn in, the witness
may affirm that his or her testimony will be truthful.
• There is no requirement that the word God be included
in an oath.
• The order of examination of a witness is direct
examination, cross-examination, redirect, and recross.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• Most states put the burden of establishing an insanity
issue upon the defense.
• The purpose of closing arguments is to summarize the
evidence.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Chapter End