7. The verdict: the sentencing and appeal

If found innocent, the defendant is immediately set free. Many verdicts confront multiple charges brought (lesser included offenses quite often) and it is common for a jury to find the defendant innocent of some but not all of the charges brought. Only if found innocent of all charges is the defendant now discharged from the criminal law system and if the defendant is on parole from a prior offense the parole board can seek to revoke parole even if a finding of not guilty was achieved since the parole board is held to a much lower It is not the jury but the judge that determines the appropriate sentence of a person found guilty by the jury. In certain cases, such as those involving the death penalty or in which "unusual circumstances" are charged by the district attorney, there may be a separate and subsequent portion of the trial in which the jury is to determine if the facts warrant the special punishment. (For example, the judge must render a much longer sentence of imprisonment if the jury determines as a fact that a weapon was used in a robbery, thus if the district attorney charges the special circumstances of use of a weapon, the court will instruct the jury to determine as a fact if such a weapon was used and this will directly limit the judge's options in the sentence the judge must impose.)

In most cases the Court, after receiving the verdict of the jury, will continue the matter for several weeks so as to receive opinions of probation officers or specialists and to give the defense and the prosecutor the chance to arrange their arguments in a hearing for the sole purpose of determining the sentence. Once the sentencing hearing occurs, the court normally renders its decision as to the actual sentence to be imposed, usually from the bench, and the defendant can be remanded immediately into prison if that is the sentence.

Criminal appeals are normally directed at errors in law committed by the judge, either during the trial or in instructions to the jury, with the side appealing arguing that the court made an error in law which affected the result of the trial. (A minor error in law which the appellate court determines did not make a significant difference in the trial will not result in a reversal on appeal.) Appeals normally take months or years to hear and very few are successful. If the appeal is successful, the case is normally sent back to the trial court for a new trial...or plea bargained away. Very occasionally, the appellate court may determine that the error requires that the entire charge be dismissed without a new trial.

 

8. Plea bargaining

The overwhelming majority of criminal cases do not go all the way through trial but are bargained by counsel into the defendant pleading to a less serious crime in return for a recommendation from the district attorney to the judge as to an appropriate sentence or fine. Most crimes have "lesser included offenses" to which a person can plead and quite often the district attorney will over charge the case precisely to scare the defendant into pleading out to a lesser offense. For example, if one commits a burglary, (defined as breaking and entering a structure to steal) there is the lesser included offense of larceny (stealing) or even criminal trespass (entering premises without permission) and pleading guilty to one of those lesser offenses is a typical example of "pleading out." The procedure often encountered is that after discussion, the district attorney agrees to reduce the charge to a lesser included one and to make a recommendation to the judge as to sentencing and the defendant agrees to plead guilty to the lesser charge. While the judge is normally not required to follow the recommendation of the district attorney, the judge almost always does and often the defense counsel can withdraw the plea if the judge refuses to agree to the "bargain."

Certain states, such as California, were so concerned at the large number of plea bargains resulting in allegedly lenient sentences that is passed laws prohibiting plea bargaining in certain circumstances and requiring the judges to sentence offenders to a certain minimum amount of time without discretion (fixed minimum sentences.) The judges hated losing that discretion arguing plausibly that the results were often very inappropriate. The law is in flux now and it is unclear how long such restrictions on the court's authority will continue.

In reality, pleas bargaining has continued almost as before and professional criminal attorneys, be they district attorneys or defense counsel, can normally come to a unified professional opinion as to the chances of success and arrange appropriate resolutions with the consent of the court. While criminal trials certainly occur more often than civil trials, most still settle before trial. And, of course, no one can force the defendant to plead guilty if the defendant wants a trial. The right to a jury trial and to force the district attorney to prove his or her case is a Constitutional right that can not be taken away without the informed consent of the defendant.