Chapter Six
Place and Time of Trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed…
— US Constitution, Amendment VI, 1791
KEY WORDS
Key terms to understand for this chapter…
•
•
•
•
•
•
•
Change of Venue
Competency to Stand Trial
Constitutional Right to a Speedy Trial
Continuance
Insanity
Statute of Limitations
Statutory Right to a Speedy 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
OBJECTIVES
After completing this chapter, you should be able to…
• Discuss the constitutional requirements concerning the
place of trial.
• Explain when a defendant may want a change of venue.
• Distinguish between insanity and competency issues.
• List the issues involved in determining if the defendant's
constitutional right to a speedy trial has been violated.
• Explain the differences between the constitutional and
statutory right to a speedy 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
OBJECTIVES
(cont.)
After completing this chapter, you should be able to…
• Describe the differences between speedy trial and
statute of limitations.
• Explain the issues that a trial judge must consider in
determining whether to grant a motion for a
continuance.
• Discuss the steps that a state must take when the
defendant is confined in another state.
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
Pretrial Action
• Before the trial phase of the administration of justice
begins, many decisions must be made.
• It must be determined when & where trial will take
place.
• Whether the trial will be by the judge alone or by jury
• Whether the defendant will represent himself/herself
or be assisted by counsel.
• What witnesses will be called, and what physical
evidence will be presented.
• Whether a pretrial hearing will be held.
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
Competency to Stand Trial
• The defense of insanity refers to the defendant’s mental
state at the time that the alleged crime was committed.
• Competency to stand trial refers to the defendant’s
mental state at the time of the trial.
• Due Process clauses of the Fifth and Fourteenth
Amendments prohibit trial of an incompetent
individual.
• If no issue is raised as to competency of the defendant,
it is assumed that he/she is competent.
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
Competency to Stand Trial
• A defendant is incompetent if lacking the capacity to
understand the nature and object of the proceeding.
– or lacking ability to consult with the defense counsel or
assist the defense counsel in preparing a defense
Lionel Tate, right, speaks with his attorney Ellis Rubin,
during a competency hearing Monday, December 19,
2005, in Fort Lauderdale, Florida.
Broward County Circuit Judge Joel T. Lazarus ruled
Tate mentally competent to face legal proceedings,
after two psychologists testified that Tate appeared
to be faking symptoms of mental illness.
Judge Lazarus set a hearing to determine whether Tate,
on probation for the 1999 killing of a 6-year-old girl,
should return to prison for allegedly robbing a
pizza delivery man at gunpoint.
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
Competency to Stand Trial
• If the defendant’s competency is at issue, burden of
presenting competency evidence is on the defense.
• If determined incompetent, the state may detain the
defendant to determine whether there is a probability
that he/she will attain competency in the near future.
• Unlike the insanity defense, if the defendant regains
his/her competency, he/she may then be prosecuted.
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
Place of the Trial
Venue
• The Sixth Amendment to the Constitution guarantees
the right to a speedy & public trial, by an impartial jury
of the State & district where the crime was committed.
– as a result of colonists’ having been dragged from their
homes to some secret place, often to England, and tried
away from their peers
• Thus, the place of the trial, or venue, lies within the
judicial district in which the crime occurred.
• The term venue is derived from the French word visne,
meaning neighborhood.
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
Place of the Trial
Venue
• If the charge is a felony, the judicial district is the
county; if a misdemeanor, the specific area of the
county so designated and established by law.
• The burden is on the prosecution to prove the crime
was committed within the district in which trial is held.
– may be accomplished by an investigating officer’s testifying
on the specific location where the crime was committed
• If venue is not established by the prosecution, a
conviction may be reversed on appeal.
– as it is the right of the defendant to have the jury chosen
from the judicial district in which the crime was committed
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
Place of the Trial
Motion to Change Venue
• The right to trial in where the crime occurred may be
waived and a request made for trial in another district.
– particularly true in felony cases
• The defendant often believes a fair and impartial trial
cannot be had in the county where the crime occurred.
– usually on belief that adverse publicity, nature of the crime,
or community hostility makes it impossible to obtain an
impartial jury
• Under these circumstances, the defendant will file a
written request, known as a motion to change venue.
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
Place of the Trial
Motion to Change Venue
• In most instances, the prosecutor will oppose change of
venue because of inconvenience and the cost involved.
– cost is not to be considered by the judge because the accused
is entitled to a fair & impartial trial, regardless of cost
• If the judge feels the change should be granted, trial will
be held in a county where it is felt a fair trial can be had.
– in most instances, an adjoining county, with cost of the
trial borne by the county where the crime occurred
• If the judge does not grant a change of venue and the
defendant is convicted, the refusal to grant a change of
venue may be grounds for 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
Place of the Trial
Time of Request for Change of Venue
• Generally, a request for change of venue must take
place before the date set for the commencement of trial.
• A change may be made after the
commencement if the jury panel
is exhausted with no jury selected,
or there is danger of violence in
the district
Serial-murder suspect John E. Robinson Sr. appears in Johnson
County Court in Olathe, Kansas, January 30, 2002, for a change
of venue hearing.
Robinson’s lawyers said he could not get a fair trial in Johnson
County, Kansas because of extensive media coverage.
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
Time of the Trial
• Speedy trial is a fundamental right of an accused
– otherwise, many injustices may be suffered
• The people, or society, also have an interest in the
guarantee to trial without unnecessary delay.
– the only way society is properly protected from offenders
• Right to a speedy trial does not permit the defendant
to demand a trial be held the same day as the arrest.
– the prosecution has the right to prepare its case, but may
not take an indefinite time in that preparation
• In setting a trial date, many factors must be considered.
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
Time of the Trial
Continuances
• Like other rights, a defendant may waive speedy trial.
• Regardless of hardships suffered, a defendant often
will delay trial as long as possible.
– months can pass between the time of arrest & when a
defendant is brough to trial, particularly in felony cases
• Delay often works to the advantage of the accused
because, with the passage of time.
– witnesses for the prosecution ma become unavailable, or
their memories are more likely to dull.
– physical evidence becomes difficult to identify and likely
to become lost or contaminated
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
Time of the Trial
Continuances
• While a defendant may suffer from continuances,
others also suffer, particularly witnesses.
• A continuance often is not granted until the case is
called for trial, so notice is not possible.
– many witnesses must take time off from work, losing pay
and incurring expense & inconvenience
• Delays cause overcrowding of the court calendar, and
other trials must be delayed, particularly civil trials.
• The most frequent ground alleged for a continuance is
adequate time to prepare 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
Time of the Trial
Continuances
• Other grounds include obtaining witnesses or physical
evidence, securing adequate &effective counsel for the
defense, and ensuring the sound physical condition of
the defendant.
• Delay may not be caused by inactivity of the defense
in not preparing the case for trial.
• There is no set procedure to be followed in making a
request for a continuance.
• Whether a continuance will be granted is at discretion
of the trial 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
Time of the Trial
Continuances - Barker v. Wingo
• The US Supreme Court, in Barker v. Wingo, discussed
ramifications of a speedy trial, and the effect of delays
on both the accused and the people.
– “The right to a speedy trial is generically
different from any of the other rights
enshrined in the Constitution for the
protection of the accused.”
David Hackett Souter (1939–) was appointed as Associate Justice of the
Supreme Court of the United States in 1990, filling the seat vacated by
William J. Brennan.
On the Court he usually votes with the liberal wing.
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
Time of the Trial
Continuances - Barker v. Wingo
• The US Supreme Court, in Barker v. Wingo, discussed
ramifications of a speedy trial, and the effect of delays
on both the accused and the people.
– “In addition to the general concern that all accused persons
be treated according to decent and fair procedures, there is
a societal interest in providing a speedy trial which exists
separate from and at times in opposition to the interests of
the accused.”
– …the longer an accused is free awaiting trial, the more
tempting becomes his opportunity to jump bail and escape.”
– “Finally, delay between arrest and punishment may have a
detrimental effect on rehabilitation.”
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
Time of the Trial
Out-of-State Incarceration
• In the past, an acceptable ground for delay in bringing
a case to trial was the incarceration in another state.
• It was assumed the prosecution had no obligation to
bring a defendant to trial if he/she was unavailable
because of imprisonment beyond the jurisdiction of the
court in which he/she was charged with a crime.
• This was changed by the Supreme Court in Smith v.
Hooey, when the Court held a defendant was entitled to
a speedy trial even while serving time in another state.
– particularly if the defendant demanded to be brought to 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
Time of the Trial
Statutory Regulations
• To assist those involved in administration of justice,
most states have statutes setting forth guidelines on
when a trial should take place.
– even these guidelines have much flexibility
• Most have provisions stating that unless brought to trial
within a set time, the charge is dismissed, and the
defendant released or bail exonerated.
– this period may be waived by the defendant
• In most instances, if a misdemeanor is dismissed,
further prosecution is barred, but states vary in the
effect of a dismissal of a felony 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
Time of the Trial
Statutory Regulations
• It has been held that unless reasonable efforts are made
to execute an arrest warrant, the accused may have
been denied the right to a speedy trial.
• If a reasonable effort is made to execute a warrant,
and the accused cannot be located, delay will not be
interpreted as a denial of a speedy trial.
• It has been held that if there is good cause for a delay
issuing an arrest warrant after a crime is committed, or
for not serving the warrant immediately after issue, a
defendant’s right to speedy trial is not denied.
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
Time of the Trial
Statutory Regulations
• Many states have passed statutes similar to California
Penal Code 1050(a):
– “The welfare of the people requires that all proceedings in
criminal cases shall be set for trial and heard and
determined at the earliest possible time,”
– “…it shall be the duty of all courts and judicial officers and
of all prosecuting attorneys to expedite proceedings to the
greatest degree that is consistent with the ends of justice.”
– “…criminal cases shall be given precedence over, and set for
trial and heard prior to any civil matters.”
– “Also no continuance of a criminal trial shall be granted
except upon sufficient cause shown in open court…”
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
Time of the Trial
Statute of Limitations
• To further assure one accused of committing a crime
is afforded a speedy trial, a statute of limitations is
incorporated into the laws of all the states.
– termed a humanitarian statute, it provides that prosecutive
action must be commenced within a reasonable time
• The statute prevents state or society from holding threat
of prosecutive action for an indefinite period over the
head of an offender.
– also described as an act of grace, as there is a surrendering
by the sovereignty of its right to prosecute
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
Time of the Trial
Statute of Limitations
• It gives law enforcement responsibility of immediate,
continuous action upon crime, to identify a perpetrator.
– so that he/she may be afforded a speedy trial
• It also gives prosecutive officials responsibility of
commencing prosecution within a specified time after
the identity of an offender is established.
• There are occasions when a law enforcement agency is
unsuccessful in identifying perpetrators until after the
time stated in the statute of limitations has lapsed.
– perpetrators may not be brought to trial if later identified
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
Time of the Trial
Statute of Limitations
• In most states, the statute of limitations is considered
a jurisdictional matter and may not be waived.
• If whereabouts of identified perpetrators of a crime are
unknown, some prosecutive action, such as a complaint
or indictment, must be commenced before the statutory
time expires or future prosecutive action will be barred.
• There was no statute of limitations, as we know it, at
common law in England, particularly in murder cases.
• This may be the reason that even today, in the US, the
statute of limitations never lapses on a murder 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
SUMMARY
Important topics for this chapter…
• The Sixth Amendment guarantees an accused the right
to a “speedy and public trial by an impartial jury of the
state and judicial district wherein the crime shall have
been committed.”
• Venue refers to the geographical location of the trial.
Venue may be waived by a defendant.
• The defense of insanity refers to the accused's mental
state at the time of the criminal 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
SUMMARY
(cont.)
Important topics for this chapter…
• The issue of competency refers to the mental status of
the defendant at the time of trial.
• Most states require the defendant to establish
incompetency by a preponderance of evidence.
• A defendant is considered incompetent if he or she
lacks the capacity to understand the charges and the
object of the proceedings against him or her.
• The right to a speedy trial is a fundamental right of an
accused.
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…
• A motion to change venue may be made by the
defendant if he or she contends that a fair trial in the
district where the crime occurred is not possible.
• The prosecution may not force a change of venue
because of the constitutional right of a defendant to be
tried in the judicial district in which the crime occurred.
• The statutory right to a speedy trial is based on definite
guidelines and specific time periods.
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 question of whether the right to a speedy trial has
been violated depends on a balancing of the issues. The
nature of the right makes it impossible to pinpoint a
precise time when the right must be asserted or is
waived.
• The statute of limitations refers to the period between
the time when the crime was committed and
prosecution is started. Some crimes, like murder, have
no statute of limitations.
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