Chapter Six Place and Time of Trial Chapter Six Place and Time of Trial In all criminal prosecutions, the accused shall enjoy the right to a speedy and

Chapter SixPlace and Time of Trial

Chapter SixPlace and Time of Trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 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 trial, by an impartial jury of the State and district wherein the crime shall have been committed…committed…

— — US Constitution, Amendment VI, 1791US Constitution, Amendment VI, 1791

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Change of Venue• Competency to Stand Trial• Constitutional Right to a Speedy Trial• Continuance• Insanity• Statute of Limitations• Statutory Right to a Speedy Trial

Key terms to understand for this chapter…

KEY WORDS



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.



OBJECTIVES

After completing this chapter, you should be able to…

• Describe the differences between speedy trial andstatute 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.

(cont.)



• 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.

Pretrial Action



• 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.

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 appearedto 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.



• 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.




• 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 triedaway 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.

Place of the TrialVenue



• 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

Place of the TrialVenue



• 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.

Place of the TrialMotion 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.

Place of the TrialMotion to Change 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 thecommencement if the jury panelis exhausted with no jury selected,or there is danger of violence inthe district

Place of the TrialTime of Request for Change of Venue

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.



• 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 defendantto 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.

Time of the Trial



• 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

Time of the TrialContinuances



• 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.

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 defensein 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.

Time of the Trial Continuances



• 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 rightsenshrined in the Constitution for theprotection of the accused.”

Time of the Trial Continuances - Barker v. Wingo

David Hackett Souter (1939–) was appointed as Associate Justice of the Supreme Court of the United States in 1990, filling the seat vacated byWilliam J. Brennan.

On the Court he usually votes with the liberal wing.



– “In addition to the general concern that all accused persons be treated according to decent and fair procedures, there isa 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.”

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 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

Time of the Trial Out-of-State Incarceration



• 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.

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.




• 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…”




• 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

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




• In most states, the statute of limitations is considereda 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.




• 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.

Important topics for this chapter…

SUMMARY



• 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.


SUMMARY(cont.)



• 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.


SUMMARY(cont.)



• 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.


SUMMARY(cont.)

Chapter EndChapter End

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Chapter Six Place and Time of Trial Chapter Six Place and Time of Trial In all criminal prosecutions, the accused shall enjoy the right to a speedy and