Government in the United States, National, State and Local

by James Wilford Garner

Appeal.—After the verdict has been rendered, the losing party may generally take an appeal to a higher court on the ground that errors were committed by the judge in the course of the trial, as, for example, the admission of improper evidence or the exclusion of proper evidence; or because the verdict was contrary to the law and the evidence. The higher court either affirms the judgment of the lower court or reverses it. If it affirms the judgment, it must then be carried out; if it reverses the judgment a new trial is granted and the whole procedure is gone through again.

Trial of Criminal Cases.—Criminal actions, unlike civil actions, are brought, not by the injured party, but by the state whose peace and dignity have been violated by the act complained of. The officer who brings the action in the name of the state is called the prosecuting attorney, the district attorney, or the state's attorney. He conducts preliminary investigations into crimes and presents cases to the grand jury for indictment. If the grand jury returns the indictment, that is, decides that the accused shall be held for trial, the prosecuting officer takes charge of the case and conducts it for the state.

The Arrest.—Usually the first step in the trial of a person charged with crime is to cause his arrest. The person injured, or any one else who may have knowledge of the crime, appears before a magistrate and makes a complaint setting forth the facts in regard to the crime. If the magistrate is satisfied as to the truth of the complaint, he issues a warrant commanding the sheriff or some other police officer to arrest the accused. The warrant must particularly describe the offense, the place where committed, and the circumstances under which it was committed, and must give the name of the person to be arrested. But in some cases an arrest may be made without a warrant, as when an offender is seen committing a crime or when an officer has good reason to believe that the person who is charged with committing a crime is the guilty person. In practice, policemen frequently arrest on mere suspicion, and if they do so in good faith they will rarely be held liable for damages. Any private individual, as well as an officer, may arrest without warrant a person whom he sees committing a crime. He may also arrest a person whom he suspects of having committed a capital crime, although without personal knowledge of his guilt.[18]

Commitment.—When arrested the accused is brought before a justice of the peace and examined. If the justice of the peace, after such examination, believes that the accused should be held for trial, he is committed to jail. If the offense is a minor one it can be tried by the justice of the peace. If it is a more serious crime the justice of the peace can hold the offender to await the action of the grand jury.

Habeas Corpus Proceedings.—If at any time it is alleged that a person is unlawfully deprived of his liberty, a judge may issue a writ of habeas corpus and inquire into the case. In this way an accused person may be set free if there is no sufficient reason for holding him.

Bail.—If the offense is not a capital one, the accused can secure his release from the jail while awaiting trial by giving bail. That is, he can get one or more persons to obligate themselves to pay to the state a certain sum of money should he fail to appear for the trial at the time set. Such persons are called sureties, and they have a certain power of control over the accused as a means of insuring his appearance for the trial. The constitutions of all the states allow the privilege of bail except in capital cases, and they all declare that the amount of bail required shall not be excessive, that is, shall not be more than is sufficient to insure the appearance of the accused for trial. What this amount is must be determined by the judge according to his own discretion, due regard being paid to the gravity of the offense, the nature of the punishment, and the wealth of the defendant or his friends. If the offender has been bound over to await the action of the grand jury, the next step in the proceedings is the indictment.

The Grand Jury is one of the ancient institutions of the common law. The number of persons constituting the grand jury was originally twenty-three, but many of the states have changed this, a common number being fifteen. The grand jury is chosen by lot from a carefully prepared list of persons in the county, qualified to serve. The members are sworn in on the first day of the term of court and are then "charged" by the judge to make a diligent inquiry into all cases of crime that have been committed in the county, and to return indictments against such persons as in their opinion should be held for trial. They then retire to their room and conduct their investigations in secret.

The Indictment.—It must be remembered that the procedure of a grand jury is not in the nature of a trial of the accused; it is only an inquiry to ascertain whether there is sufficient evidence of guilt to warrant his being put on trial. In conducting this investigation, the grand jury hears only one side of the case, that of the prosecution, neither the accused or his witnesses being heard. The prosecuting attorney attends the sessions of the grand jury and aids it in the conduct of its inquiries. He prepares the indictment and it is often upon his recommendation that the grand jury decides to indict or not to indict. In some states the procedure of indictment by grand jury for all offenses, or for all except the most serious ones, has been done away with, the accusation taking the form of an "information" filed by the prosecuting attorney. One of the reasons given for abolishing the grand jury is that it is often a source of delay since it can be called only when the court is in session, and in some communities the court is not in session for long periods in every year.

The Arraignment.—After the accused has been indicted the next step is to bring him before the court and arraign him. The charge is first read to him and he is directed to plead. If he pleads guilty, no further action is taken and the judge imposes the sentence. If he pleads not guilty, the trial proceeds. If he has no counsel to defend him, the court appoints some member of the local bar to act as his attorney, and the lawyer so designated is under a professional obligation to undertake the defense and do all in his power to clear him. In this way the murderer of President McKinley was enabled to have the benefit of counsel. Many writers on criminal law, indeed, contend that the state ought to employ regular public defenders for accused persons just as it employs public prosecutors, since it should be equally interested in seeing an innocent man acquitted as in seeing a guilty one convicted.[19]

Selection of the Jury.—The next step is the impaneling of a jury of twelve persons to try the case. The law requires that the jury shall be selected from the community in which the offense was committed, in order that the accused may have the benefit of any good reputation which he may enjoy among his neighbors. The jury is chosen by lot from a list of persons qualified to perform jury service, and the jurymen are sworn to return a verdict according to the law and the evidence. Each side is allowed to "challenge," that is, ask the court to reject, any juror who has formed an opinion of the guilt or innocence of the accused or who is evidently prejudiced. In addition, each may reject a certain number of jurors "peremptorily," that is, without assigning a cause.