Trials and errors–Part 1 by Scott Gamboe

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PROPER USE OF THE LEGAL SYSTEM IN FICTION

From Scott:

After an extended (and unintentional) blogging absence, I’ve returned with a series on criminal legal processes. These entries will offer some guidance to writers who wish to include criminal proceedings in their writing and to do so with a degree of accuracy.

As a disclaimer, I would like you to keep in mind that this will all be based upon Illinois criminal law. The exact terms and procedures may vary from state to state. Chicago may also be a bit different, as the Illinois Legislature has passed a number of laws that specifically exempt (or only apply to) Chicago. The federal system is a whole different beast, but I intend to touch on that as well. With all that in mind, let’s dive right in.

The first topic I should clarify is terminology. I cringe when I hear (or worse, read) where someone says a criminal defendant must be proven guilty “beyond the shadow of a doubt.” When you get right down to it, very little outside of mathematics can be proven beyond the shadow of a doubt. The correct term is “beyond all reasonable doubt.” Putting it another way, “reasonable doubt” is about 90% sure that the person is guilty.

The next level down from there is “probable cause.” In this case, it means that it’s more likely than not that the person is guilty. An officer needs probable cause to conduct a search of a person or place, to make an arrest, or to obtain a search warrant.

The third level is “reasonable suspicion.” This is the lowest level of certainty, based upon the “reasonable person” standard. Basically, you ask yourself a question: would a reasonable person believe this? An officer can stop a person and ask questions, if reasonable suspicion exists.

While we’re on the topic of terminology, let’s talk about verdicts. A person can be found guilty, whether by the judge’s decision in a “bench trial,” or by a unanimous verdict of a 12-person jury. The same applies to a verdict of not guilty: all twelve jurors (or the judge) must say the person is not guilty of the charge. Even if eleven jurors say a defendant is guilty, and one juror will not change his mind, you will have a mistrial due to a hung jury.

What you need to avoid saying in your books is that a person was found “innocent.” No one is ever found innocent of a crime in our judicial system, because a person is presumed innocent until found guilty. If there is a mistrial, the State can choose to pursue a new trial, or not. However, if found not guilty, that person can never be tried again for that offense. Even if the defendant loudly proclaimed his guilt after the verdict of “not guilty,” the State cannot bring charges. This is a constitutional protection called “double jeopardy,” meaning you can’t be tried twice for the same crime.

The most minor of offenses are your typical traffic citations. Driving in excess of the speed limit, failing to stop at stop signs, improper usage of traffic lanes: all of these things will earn you a ticket and cost you some money. Some of the tickets, like signaling and lane usage, hold a standard fine, while speeding fines increase as the level of the violation increases. The violator has the option to pay the fine, and therefore plead guilty, or move forward with the right to a trial, as guaranteed by the Constitution. In this case, a guilty verdict results in a fine, plus court costs. I’ll focus on what happens when the driver takes the ticket to court.

The first court date, about a month from the date of the violation, isn’t actually a court date. Instead, this is the last date available to either pay the fine or arrange a second court date. Failing both of these, if the violator isn’t in court, an arrest warrant will be issued. Assuming the proper arrangements are made, it’s the next court date that determines the outcome of the case.

I should point out that although we, as Americans, have the constitutional right to have an attorney, and the “Miranda Rights” dictate that if you can’t afford a lawyer, one will be provided at no charge, this does not apply to typical traffic cases. The person being tried is not in danger of losing life or liberty (meaning jail is not an option, so the only penalty is financial). Therefore, the right to a free attorney does not apply. I have never seen a jury trial on a traffic ticket. I’m not saying it wouldn’t be allowed, but I would imagine that if a driver did manage to obtain a trial by jury on a speeding ticket, the court costs would be enormous. [RICK ADDS: And I assume far more than the ticket fine.]

When the trial arrives, it will be the driver (and witnesses, if applicable) on one side, and the prosecutor and police on the other. In Illinois, the proper term for the prosecutor is the State’s Attorney. Other states refer to them as the District Attorney. Either way, the prosecutor speaks first and provides an opening argument as to why the driver is guilty of the charge. The driver is then given an opportunity to give an opening statement as well.

Once the statements are over, the prosecutor will call the first witness, usually the police officer, and ask questions. Called “direct examination,” this presents the officer’s story to the judge. The officer can’t use his report to testify (typically, reports are not even written for traffic tickets). If he can’t remember something, the prosecution is allowed to hand him his report to refresh his memory, but the officer has to give the report back before answering the question.

Once direct examination is over, the driver can ask questions of the officer, called “cross examination.” These questions have to relate to what was in the officer’s report, the ticket, or the direct examination. One the driver finishes, the prosecutor can ask questions again, “redirect examination,” but only in clarification of questions the driver asked. Finally, the driver can go into “re-cross examination.” When the driver and prosecution are finished, the officer steps down and the next prosecution witness is called, although in a typical traffic case the cop is the only witness.

The driver can offer testimony on her own behalf, but is not required to testify. The constitutional protection against self-incrimination still holds in the traffic courtroom, so nothing can compel a driver to testify. If she does testify, the prosecutor can ask all manner of questions of her, and in most cases this won’t end well for the driver. The driver can also call witnesses and, through direct examination, present evidence to the court.

Once the witnesses on both sides are finished, the prosecution gets to offer a closing argument. The driver offers a rebuttal with her own closing argument, and the prosecution gets one more final say before the judge issues the verdict. Usually, drivers are found guilty in traffic court. Dashboard cameras in squad cars capture drivers violating stop signs, speeding, or breaking whatever law the driver stands accused of. The downside for fighting the ticket is that, in addition to the fine, the driver now has to pay court costs, which can be hundreds of dollars.

Driving Under the Influence (DUI) is a different beast (in some states, this is Driving While Impaired, or DWI). A conviction for DUI can land a person in jail, so the right to a court-appointed attorney does apply. Jury trials are fairly common in DUI court, depending on what the defense strategy will be. A jury can be more emotionally guided than a judge, who will tend to look at things from a dispassionate perspective. Planning to beat a DUI on technicalities? You’re better off in front of a judge. Looking for sympathy because of hardship or a disability? The jury is your best bet. The reason is simple. To obtain a conviction, all twelve jurors must agree. If the defense is lucky enough to find a sympathetic juror, the prosecution won’t win a conviction.

DUI trials proceed in basically the same manner as the standard traffic case, except that it proceeds at a much slower pace. The number of witnesses called to testify is usually higher, and the length of the testimony is longer. These trials can last for days, particularly if a fatality was involved. The prosecution tries to paint the picture of an intoxicated motorist who either presented a danger to society or actually caused a crash, while the defense tries to discredit the prosecution’s case. In the end, it all falls to the jury (or judge) to make the call.

In the next entry, we’ll move up to the issue of criminal proceedings, both misdemeanor and felony, and the differences between them.

–Scott

1 comment

  • Paul Gearhart

    posted by Paul Gearhart

    Friday, 17 August 2018 03:53

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