The Criminial Case
The Arrest and Summons
Search and Seizure
Police Station Procedures
Circuit Court Arraignment
Guilty Plea Proceedings
Post Trial Proceedings
The Arrest and Summons.
A. Arrest. To deprive a person of one's liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining that person to answer a criminal charge or civil demand. Physical seizure of persons by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." It is a restraint, however slight, on another's liberty to come and go.
1. With a warrant:
a. An arrest warrant is a legal process ordering the arrest of a person. It is served by regular law enforcement officers, such as the local police, sheriff's department or highway patrol.
b. A warrant is ordered by a court of competent jurisdiction based on a showing of probable cause that:
i. The person has committed a crime;
ii. He has violated the conditions of a pre-trial release bail bond;
iii. He has violated conditions of parole or probation; or
iv. If the court believes the defendant will leave the state. (See Rule 21.05.)
c. A warrant must be in writing and is issued in the name of the State of Missouri.
i. The warrant contains the name of the arrestee and a description of the offense charged.
ii. It states the date issued and the county where issued.
iii. It commands that the accused named or described therein be arrested and brought before the court.
iv. It specifies the conditions of the person's release and is signed by the judge or clerk of the court.
d. An officer need not have a warrant in his possession to make an arrest (it may be in the computer), but the actual warrant must be delivered to the arrestee as soon as practicable.
2. Without a warrant:
a. An arrest without a warrant may be made if a crime (either a felony or a misdemeanor) is committed in the law enforcement officer's presence, or in the presence of the private citizen making the arrest (a private citizen has no greater powers than a law enforcement officer when making an arrest).
b. A law enforcement officer may make an arrest without a warrant if he has probable cause to believe a person has committed a felony although it was not committed in his presence.
c. "Twenty-hour law" – Until 2005, any person arrested in Missouri without a warrant and confined for the commission of a misdemeanor or felony must be released from custody within twenty hours of the arrest unless he is held on a warrant. The statute was amended to permit a twenty-four hour hold for any crime. (RSMo. Supp. 2005.) (Note that as of the date of this Update, the statute is still ambiguously titled “Twenty hours detention on arrest without warrant.”)
1. A summons is a legal document issued by a court, ordering the accused to appear in court at a prescribed time and place.
2. It is served on the accused in the same manner as in a civil action. It may be served anywhere in the state by any law enforcement officer.
3. A summons is used in less serious cases where the court believes that the accused will appear without arrest. If the defendant fails to appear, an arrest warrant may be issued.
Search and Seizure.
Criminal cases sometimes involve questions of the legality of a search of a person or place and the admission of evidence that is seized in the search.
A. The Fourth Amendment to the U.S. Constitution and Article I, Section 15, of the Missouri Constitution prohibit "unreasonable" searches and seizures.
1. These provisions are designed to prohibit the arbitrary and unwarranted intrusion by government agents into the privacy and personal security of the individual.
2. Evidence obtained in violation of these provisions is excluded from the trial of the defendant as a means of preventing unconstitutional searches and seizures. For this reason, it is called the "exclusionary rule."
B. With a warrant. A search may be made under the terms of a search warrant, i.e., a written order of a court commanding the search of a specific person, place or thing and the seizure of property specifically described in the warrant.
1. A warrant must be issued by a court having territorial jurisdiction where the person or property is located.
2. Application to the court must:
a. Be in writing by a law enforcement officer or prosecuting attorney.
b. Specifically identify the person or place to be searched and the property sought.
c. State facts showing probable cause to make the search.
d. Be sworn to by the person making the application.
3. The judge holds a non-adversarial, informal hearing and determines whether all requirements are met. If so, he issues the search warrant.
4. The warrant may be executed only by a law enforcement officer.
C. Without a warrant. A search without a warrant is considered unreasonable unless it is made in certain carefully defined instances. Examples of legal warrantless searches include:
1. A search and seizure made at the time of a lawful arrest to prevent the destruction of evidence of a crime, to discover weapons that could be used to harm the police officer or aid the suspect in an escape, or to preserve and protect items found upon inventory of an auto towed from site of arrest.
2. A search and seizure made where "exigent" circumstances exist, such as in emergency situations in response to a need for help or where there is reason to believe the suspect will escape if not quickly apprehended.
3. A search conducted with the consent of the owner of the place or thing searched.
4. Under the "plain-view" doctrine, seizure of evidence without a warrant is permissible if: officers are lawfully in a position to view the evidence, if the discovery of evidence is inadvertent, and if the incriminating nature of the evidence is immediately apparent.
Police Station Procedures.
A. Some events occur at the police station after an arrest and generally are not in violation of an accused's rights. An attorney usually is not required to be present when these events take place. These include:
1. Fingerprints - taken for police records and identification and to compare with latent prints taken from a crime scene, automobile, etc.
2. Photographs - taken for police records and identification.
3. Sobriety tests - may consist of field-type tests such as walking a straight line, but the most common is the breathalyzer, which measures alcohol content of blood.
4. Lineup - placing the accused in a lineup with two or more persons of similar appearance to be viewed by a victim or other witness. No attorney need be present if a formal charge has not been filed.
5. Other tests - scraping from under fingernails, gun powder residue tests, examination of clothes, swab analysis of hands, etc.
B. Statements may be taken from a person and used in evidence only after the person is informed of and waives his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)). These rights, which generally must be read to a person before he is questioned by police, are:
1. The right to remain silent.
2. The fact that anything the person says may be used against him in court.
3. The right to consult an attorney and have the attorney present during questioning.
4. The right to have an attorney appointed for the person if the person cannot afford to hire an attorney.
C. Every person in charge of an initial detention facility (e.g., a jail, police station, etc.) must conspicuously place a notice which informs a detainee of his or her Miranda rights and a listing of all cases for which a state-subsidized attorney may be appointed by the court. Also, facilities must be provided for a detainee to privately discuss his or her case with an attorney or other authorized person.
A. The complaint against defendant is filed in the county where the offense is alleged to have occurred. Venue of the case (place where case is to be tried) is in that county unless transferred elsewhere on change of venue.
B. Initial appearance - an accused (now the defendant) must be brought before a judge (usually an associate circuit judge) as soon as practicable after arrest.
1. The judge informs the defendant of:
a. The crime charged.
b. The right to have a lawyer, either hired by the defendant or appointed by the court.
c. The right to remain silent, and the fact that any statements made may be used against the defendant.
2. Bail (bond) is set.
3. If the crime charged is a felony, the defendant need not enter a plea at this time. The judge will set a date for the preliminary hearing in order to determine if there is probable cause for the crime charged. If the defendant waives his right to such hearing, he is immediately "bound over" to be taken before a circuit judge.
4. If the crime charged is a misdemeanor, the defendant may plead guilty and have the case disposed of or may plead not guilty and a trial date will be set. (See D below.)
5. If the accused, or any person in his behalf, requests the appointment of counsel, he must fill out an affidavit concerning his financial status. If the public defender finds that the defendant cannot employ counsel without substantial financial hardship to himself or his dependents, then the public defender will represent that person. If the public defender finds the accused is not indigent, the accused may appeal that determination to the court where the case is pending.
C. In a preliminary hearing (in felony cases) the associate circuit judge determines whether there is probable cause to believe that a felony has been committed and that the defendant committed it.
1. The prosecuting attorney presents on behalf of the state the evidence which he desires to offer and the defendant has the right to cross-examine the state's witnesses. The defendant may present evidence on his own behalf, but this is not normally done.
2. The judge may either:
a. Discharge the defendant if no probable cause is found.
b. Have the defendant "bound over" for trial in the circuit court if probable cause is found to believe that the defendant committed the felony.
3. The "double jeopardy" clause does not come into effect at the preliminary hearing. Therefore, a discharge of the defendant at this stage does not mean the prosecuting attorney cannot refile the charge or seek a grand jury indictment.
4. The judge may review the amount of bond previously set and may change it if circumstances warrant.
5. A date is set for the defendant to appear in circuit court for arraignment.
D. Disposition of cases by associate circuit judges.
1. Most misdemeanor cases are heard by associate circuit judges.
a. The judge may sentence the defendant to up to one year in the county jail (or the maximum term provided by the statute, if it is less than one year) and/or impose a fine within the statutory limits after a guilty plea is entered or the defendant is found guilty after a trial.
2. An associate circuit judge may be appointed by the presiding judge of the circuit to hear a felony case, if that associate judge did not conduct the preliminary hearing in the case.
E. Initial proceedings in a United States (federal) Court.
1. In misdemeanor cases, the initial probable cause determination is made by the U.S. Attorney's office.
a. At the first appearance in court, the federal magistrate will cover the matters set out in section B(1) and (2) above.
b. A trial date is set, usually before the magistrate, not the district judge.
2. In felony cases, the U.S. Attorney's office files a complaint with the federal magistrate, supported by affidavits to show probable cause for the defendant's arrest.
a. An arrest warrant is issued, and the defendant is brought before the magistrate for initial appearance.
b. A preliminary hearing is held and a probable cause determination is made.
c. If probable cause is found, the accused is "bound over" for grand jury action, and the U.S. Attorney must obtain a grand jury indictment. The accused may waive the grand jury presentment; if so, he is charged by an Information filed by the U.S. Attorney, is arraigned, and a trial date is set.
3. A federal magistrate may take a plea or try any misdemeanor case, but not a felony case.
A. The primary purpose of bond at any stage of a criminal proceeding is to assure that the defendant will appear in court when told to do so. The court must set a bond except where the defendant is charged with a capital offense and the evidence of guilt is great.
B. Considerations in setting the bond:
1. The crime charged and the weight of the evidence against the defendant.
2. Defendant's prior record, or lack of it.
3. Employment history.
4. Permanency of residence.
5. Defendant's age and family situation.
6. Any other relevant factors.
C. Different types of bonds available:
1. Signature bonds - the defendant is released on his own promise to appear, without posting cash or security. However, a bond amount is set and the defendant would be liable for that amount if he violates the conditions of bond and the bond is ordered forfeited.
2. 10% bonds - the defendant deposits with the court cash or securities equal to 10 percent of the bond amount. This deposit is returned if the defendant shows up for all court appearances. Again, the defendant would be liable for the full amount of the bond if the bond conditions are violated and the bond is ordered forfeited.
3. Secured bonds - these may be any one of the following:
a. Bond posted by a professional bondsman, who charge a fee for the service, typically 10 percent of bond price.
b. Bond guaranteed by a surety company (insurance company).
c. Bond secured by the property - real or personal - of an individual, either the defendant or some other person.
D. Conditions that may be imposed by a court on bond include:
1. The defendant not leave the state.
2. The defendant refrain from the use of drugs or alcoholic beverages.
3. The defendant be supervised by the Board of Probation and Parole.
4. The defendant enter a work release program.
5. The defendant not violate any state or federal laws or county or city ordinances.
6. The defendant report periodically to the court.
A. A person may be charged with a crime by either of two pleadings - Information or Indictment. Either pleading must contain certain facts:
1. Defendant's proper name.
2. Essential facts of the offense alleged.
3. Name and degree of offense alleged.
4. Names of all witnesses to be called by the State at trial.
5. Time and place of offense charged stated as definitely as possible.
6. Cite sections of statutes alleged to have been violated and the section of the statutes which fix the penalty or punishment.
B. An Information - an accusation of some criminal offense - is the most common way of charging defendants in Missouri.
1. The prosecuting or circuit attorney must file an Information within ten days after the associate circuit judge has ordered the defendant "bound over" for trial.
2. An Information must be based on the associate judge's findings of probable cause.
C. Indictments are less frequently used in Missouri, although they are being used more often in Jackson County and in other areas where the secrecy of the grand jury proceedings is used to avoid the early revelation of the prosecution’s case at a preliminary hearing.
A. A grand jury in Missouri is convened on order of a circuit judge. It consists of 12 persons who usually serve three to six months. Grand juries sit continually for the most part in metropolitan circuits, but are called less frequently in other circuits.
B. Basic grand jury procedures:
1. Hearings are secret and jurors are sworn not to reveal information about events taking place in the grand jury room.
2. Evidence to determine whether there is probable cause to prosecute is presented by the prosecuting or circuit attorney, who also acts as advisor, to the jury.
3. Possible defendants or their attorneys are not allowed to be present when testimony is given concerning them; however, they may present their own defense to the grand jury if the prosecuting or circuit attorney permits.
4. Witnesses are sworn to secrecy after testifying, though they may comment if they desire before they testify.
5. Only grand jurors may be present when deliberations are held and when votes are taken.
1. A "true bill" is voted when probable cause is found to prosecute; a "no true bill" is returned if probable cause is not found.
2. A vote of nine jurors is sufficient to return the Indictment.
3. The Indictment, which must contain the same information as the Information, is signed by the grand jury foreman and the prosecuting or circuit attorney and is then presented in open court to the circuit judge.
4. An indictment is not a finding of guilt.
5. Provided the low threshold of proof for an indictment, as a practical matter the return of a “no true bill” is extremely rare.
D. The judge orders an arrest warrant issued for the defendant, if the defendant is not already in custody, and sets bail. Indictments sometimes are kept secret until the defendant is in custody.
E. A federal grand jury is convened on order of a federal district judge.
1. It consists of 16 to 23 members who serve for up to 18 months.
2. A vote of at least 12 jurors is required for an Indictment.
3. Witnesses may be bound to secrecy. (See Fed. R. Crim. P. 6(E)(2).)
Circuit Court Arraignment.
A. This is the first formal presentation of the Information or Indictment to the defendant.
B. Arraignment procedures:
1. Arraignment is conducted in open court.
2. The court makes certain the defendant has an attorney or that he waives that right knowingly and voluntarily; a court rarely lets a defendant proceed without an attorney.
3. The Information or Indictment is read to the defendant or the substance of the charge is stated, and the defendant is given a copy of the charge.
4. The defendant must enter a plea to the charge. Three pleas are possible:
b. Not guilty.
c. Not guilty by reason of mental disease or defect.
5. The court may set a trial date and hearing dates on pre-trial motions, if any, either at this time or later.
C. In federal court, arraignment is generally handled by the federal magistrate.
1. In addition to the pleas enumerated in Section B(4) above, a defendant in federal court may also plead nolo contendere, or "no contest." This plea and the plea of not guilty by reason of mental disease or defect have the same effect as a guilty plea and the defendant may then be sentenced.
Guilty Plea Proceedings.
A. Before accepting a plea of guilty the court must do certain things:
1. Address the defendant and inform him and make certain he understands:
a. The nature of the charge.
b. The range of punishment for the offense.
c. The right to be represented by an attorney, including the fact that defense counsel will be appointed if the defendant cannot afford a lawyer.
d. The right to a jury trial, including the right to cross-examine witnesses and the right not to be compelled to incriminate oneself.
e. The fact that all of these rights are given up (except having a lawyer present) if a plea of guilty is made.
2. Determine that the plea is not the result of force, threats or promises, other than a plea bargain agreement (see Section B below), and is, on the whole, a knowing, voluntary and intelligent act of the defendant.
3. Determine that there is a factual basis for the defendant's admission of guilt.
4. The entire guilty plea proceeding must be conducted in open court and recorded by a court reporter.
B. Plea bargain or agreement procedure.
1. The defendant, defendant's counsel and the prosecutor may engage in discussions with a view toward reaching an agreement, under the terms of which the prosecuting or circuit attorney may:
a. Agree to dismiss other charges; or
b. Agree not to oppose the defendant's request for a particular sentence; or
c. Agree on a particular sentence; or
d. Make a recommendation for an appropriate sentence.
2. The judge cannot participate in the plea discussions, but after an agreement has been reached, the judge may discuss it with the attorneys, including discussing acceptable alternatives to the agreement reached.
3. Plea agreements must be disclosed in open court before the judge with the court reporter present.
4. If the plea agreement is accepted by the court, the court must so state and is then bound to enter the agreed-upon sentence.
5. The court may accept the plea agreement conditioned upon receipt of a favorable pre-sentence investigation.
6. If the court rejects the plea bargain, it must inform the parties and give the defendant an opportunity to withdraw the guilty plea before sentencing.
A. Pre-trial discovery.
1. The present philosophy in Missouri is to require both sides to reveal much of the evidence they intend to use to eliminate surprise at trial and to obtain a fair result.
2. Examples of the openness of discovery:
a. Each party must give to the other names and addresses of witnesses (other than the defendant's name).
b. Disclosure of statements taken from the witnesses.
c. Disclosure of reports made by experts, including results of physical or mental examinations and scientific tests or experiments.
d. Disclosure of physical evidence.
3. Disclosure must be made only if the opposing party's lawyer files a written motion requesting the information.
B. Pre-trial motions.
1. Typical pre-trial motions filed to insure a defendant's rights include:
a. Motions to suppress the defendant's statement because it was obtained through force, without adequate Miranda warnings, or after an illegal arrest.
b. Motions to suppress illegally obtained evidence, such as through an improper search.
c. Motions to suppress an in-court identification of the defendant because, for example, the police station line-up was unduly suggestive.
d. Motion to obtain a mental examination.
e. Motion to enforce discovery requests.
2. Typical pre-trial motions filed by the state include:
a. A motion to require the defendant to appear in a line-up.
b. Motions to require the defendant to be photographed, try on certain clothing, or give voice, handwriting or blood samples.
Motion to enforce discovery requests.
The defendant has a constitutional right to a jury trial under the Missouri and Federal constitutions in most criminal cases.
In Missouri, twelve people serve on a jury. With the consent of the court, the defendant may waive his right to a jury trial and the case will be tried to the court.
While most felony cases tried are to a jury, most misdemeanor and traffic cases are tried to the court.
Argument to Jury
Verdict or Finding
After a Guilty Verdict
A. Voir Dire.
1. Each side and the court may ask the panel of potential jurors (venirepersons) questions pertaining to the qualifications of each to serve on the jury. In Missouri state courts questioning is done primarily by the attorneys. In federal court most of the questions are asked by the judge.
2. A venireperson is excused "for cause" if, in the judge's opinion, he is biased for or against either side. There is no limit on the number of challenges "for cause" which either side may assert.
3. Each side gets an equal number of what are called "peremptory challenges" or "strikes."
a. The party making a peremptory challenge need not give a reason for removing a potential juror from the panel.
b. This right cannot be used, however, for the systematic exclusion of any class of people from juries.
c. In most state court cases, each side has three peremptory strikes in a misdemeanor case, six in a felony case, and nine in a death penalty case.
d. In federal court, the number differs slightly.
B. Opening statements.
1. The State is first and must make an opening statement outlining what it expects the evidence to be to prove all elements of the crime.
2. The defendant's attorney may:
a. Make an opening statement after the State, or
b. May reserve it until the conclusion of the State's evidence, or
c. May waive giving an opening statement.
3. Attorneys' opening statements are not evidence.
1. State's evidence must prove that the crime charged, or a lesser included offense, was committed and that the defendant committed it, or the court will dismiss the case.
2. The defendant may present evidence after the State, or may elect to present no evidence.
3. If the evidence presented by the defendant raises new issues, the State may present rebuttal evidence.
4. The side presenting a particular witness questions that witness first (direct examination). The other side has a right to cross-examine the witness about all matters testified to on direct examination. There may be redirect and recross examinations, the limits of which are controlled by the trial judge. A witness who has testified and been excused may be recalled for further examination if permitted by the trial judge.
5. Each side is entitled to object to the admission of evidence. Some common reasons for objecting include:
a. The evidence is not relevant to any issue in the case.
b. The evidence is highly prejudicial.
c. The evidence is hearsay.
d. The evidence was obtained through illegal police action and should be excluded under the "exclusionary rule."
6. Each side has the right to compel the attendance of witnesses and the production of documents and other evidence through the use of a subpoena.
7. The jury's function is to evaluate the evidence and decide the facts. It must decide who is telling the truth.
D. Defendant's rights.
1. Presumption of innocence - the defendant is presumed innocent unless and until the jury finds him guilty.
2. Burden of proof - the State has the burden of proving its case against the defendant.
a. In a criminal case, there is never a burden on the defendant to prove his innocence.
b. The State's burden is defined as "beyond a reasonable doubt." Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. The law does not require proof that overcomes every possible doubt. In a civil trial, the burden is usually “by the preponderance of evidence,” a lower standard.
3. Confrontation and cross-examination - the Constitutions of the United States and Missouri guarantee that evidence presented against the defendant be given in the defendant's presence.
a. The defendant has a right to face his accusers.
b. This right can be forfeited or waived.
c. The defendant, through his lawyer, has the right to cross-examine the State's witnesses.
4. Speedy and public trial - guaranteed by the Missouri Constitution, Art. I, section 18(a).
a. Section 545.780, RSMo 2000, requires that if the defendant announces that he is ready for trial and files a request for a speedy trial, then the court shall set the case for trial as soon as reasonably possible thereafter.
b. This time can be extended because of actions taken by the defendant (such as failure to appear or requesting a continuance) or because of certain court orders (such as an order for mental examination).
c. Section 476.170, RSMo 2000, provides: "The sitting of every court shall be public and every person may freely attend the same." (See also, section 510.200, RSMo 1994.)
d. In federal court, the trial must commence within 70 days of the defendant's first appearance on an Information or Indictment or, if the defendant is in custody, within 90 days following the beginning of such custody.
e. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court held that criminal trials must be open to the public unless the trial court determines there is an "overriding interest" to close the courtroom.
i. The U.S. Supreme Court said there was a right to attend criminal trials implicit in the First Amendment.
ii. The U.S. Supreme Court, in 1979, stated in Gannett v. DePasquale, 443 U.S. 368 (1979), that even though the Sixth Amendment guarantees the accused a right to a public trial, it "does not give a right to a private trial."
iii. See also Missouri v. Lohmar, 5 Med.L. Rptr. 2156 (1979).
f. In State Ex Rel., Pulitzer Inc. v. Autrey, 19 S.W.3d 710 (Mo.App.E.D. 2000), the Missouri Appellate Court held that in most cases any motion to close a criminal hearing to the public, including the press, must be docketed so that the public is afforded an opportunity to object.
5. Right to remain silent - guaranteed by the U.S. Constitution (Fifth Amendment) and the Missouri Constitution (Article I, section 19).
a. Often a defendant will not testify because he does not want his prior criminal record to be known (if the defendant takes the witness stand his criminal record may be revealed for the purpose of impeaching his credibility as a witness).
b. If the defendant does not testify, the court and prosecuting attorney cannot comment on it or try to have the jury infer guilt from the failure to testify.
6. Right to have counsel - the defendant is entitled to have a lawyer represent him in all criminal trial proceedings and on appeal. If a defendant cannot afford an attorney, one will be appointed by the court.
E. Victims’ and Witnesses’ Rights. (Section 595.209, RSMo Supp. 2005).
1. Victims of serious crimes have the right to be informed about the case against the defendant or the defendant's release. Victims also have the right to be present at all criminal justice proceedings that the defendant is allowed to attend.
2. Victims and witnesses have a right to reasonable protection from anyone who would harm them because of their cooperation with the prosecutor or police.
3. The victim has an absolute right to be present at any hearing in which the defendant appears before a probation and parole hearing officer.
4. In the case of Payne v. Tennessee (501.U.S. 808) 1991, the U.S. Supreme Court determined that states can permit the admission of victim impact statements during the sentencing portion of a trial. Missouri permits this practice.
F. Court instructions.
1. The court instructs the jury on all law in the case.
2. The court reads basic instructions to the jury after the voir dire. These explain the trial and its procedures.
3. At the conclusion of the case, before closing arguments, the court instructs the jury on the elements of the crime that the jury must find before returning a guilty verdict, sets out the legal rights of the defendant, and defines the function and duties of the jury.
4. In Missouri, the jury instructions are based on "form" or "pattern" instructions that have been approved by the Supreme Court for use in all cases. See Missouri Approved Instructions (MAI-CR). Copies of all appropriate instructions in a case are given to the jury when it retires to deliberate on a verdict.
5. In federal court, the instructions are read to the jury after closing argument. Copies of the instructions are not given to the jury.
G. Argument to jury.
1. The prosecuting attorney argues first, then the defendant's attorney argues. The prosecutor, because the State has the burden of proof, then is permitted a rebuttal. Each side, however, receives an equal amount of time for argument.
2. The arguments are intended to outline and emphasize the evidence supporting the position of the party making the argument and to apply the evidence to the court's instructions.
3. Attorneys' arguments are not evidence.
H. Verdict or finding.
1. A jury returns a "verdict." The court makes a "finding" in a court-tried case.
2. The verdict must be unanimous. If a unanimous vote cannot be obtained, no verdict can be returned and the judge must declare a mistrial. The case then may be retried.
3. There is no fixed limit on the length of time for a jury's deliberation. The length of time is within the discretion of the judge.
4. If the defendant is found not guilty (acquitted), the State is barred from retrying him on that charge (double jeopardy).
a. In Missouri the jury has the primary responsibility of assessing punishment but the judge gives the final sentence. In many states and in the federal courts, the jury returns a verdict of guilty or not guilty and the judge determines the sentence.
b. If the jury finds the defendant guilty but is unable to agree on punishment, the judge will set the sentence.
c. In cases tried without a jury, the judge determines both guilt and punishment.
d. In capital murder cases (where the death sentence is a possibility), a separate hearing on punishment is held before the same jury that returned a verdict finding defendant guilty of capital murder. The State may produce evidence to warrant imposing the death penalty, and the defendant may produce evidence to show that a lesser penalty should be imposed.
e. If the defendant is a repeat offender because of the commission of prior felonies, the judge assesses punishment within prescribed statutory limits. The prosecutor must charge and prove that a defendant is a prior, dangerous or persistent offender.
I. After a guilty verdict, the court:
1. Sets the time for filing a motion for new trial.
a. In state court, the motion must be filed within 15 days, but the court can grant an additional 10 days.
b. In federal court, the time is seven days but can be extended by the judge.
2. Reviews the amount and conditions of bond.
3. Orders that a pre-sentence investigation be made by the Board of Probation and Parole if desired by the court.
POST TRIAL PROCEEDINGS
Motion for New Trial
Judgment and Sentencing Alternatives
Revocation of Probation
Post Judgement Remedies
A. The motion for new trial or for judgment of acquittal notwithstanding the jury verdict must be filed by a defendant in jury-tried cases in order to preserve for appeal any alleged trial court errors. A motion for new trial is permissible but not required in court-tried cases.
1. The motion must set out all alleged errors so the trial judge has a chance to correct them.
2. The motion forms a basis for appeal. Allegations of error not contained in the motion cannot be raised on appeal except as "plain error." (See Rule 29.12.)
3. Examples of alleged errors which may be stated in a motion for new trial:
a. The jury has received any evidence, papers, or documents, not authorized by the court.
b. The court has admitted illegal testimony, or excluded relevant, competent and legal testimony.
c. Newly discovered evidence.
d. Jury misconduct.
e. Court has misdirected the jury in a material matter of law.
f. Verdict is contrary to law or evidence.
B. Judgment and sentencing alternatives.
1. If the post-trial motion is overruled, the court inquires if there is any legal cause why sentence should not be imposed. This is called "allocution."
2. The court then imposes the sentence assessed by the jury (unless imposition of sentence is withheld). The court may reduce the sentence approved by the jury if the judge believes it is excessive or if the sentence exceeds the statutory maximum. The court may not increase the sentence unless the jury's sentence is less than the statutory minimum.
3. If the court sentences the defendant to the penitentiary, it may, on its own motion, order the defendant released on probation any time up to 120 days after his arrival at the Missouri Department of Corrections, but not thereafter.
4. The court may suspend execution of the sentence and place the defendant on probation for a maximum period of five years, subject to various conditions. (Sections 559.016 and 559.021, RSMo 2004)
a. Common probation conditions are:
i. Requiring the defendant to make restitution to the victim and perhaps other persons injured by his actions.
ii. Prohibiting the commission of further crimes.
iii. Requiring satisfactory completion of a drug or alcohol treatment program.
b. A special condition of probation may be to require the defendant to serve up to 120 days in jail on a felony conviction or 30 days on a misdemeanor conviction. This is termed "shock probation." (Section 559.026, RSMo 2004)
c. The court may suspend imposition of sentence and place the defendant on probation. (Section 557.011, RSMo 2004.) If the defendant completes the probation satisfactorily, he has no conviction. If he violates the conditions of his probation, the judge may revoke his probation (after a hearing) and sentence him.
d. An appeal bond is set by the judge, except release on appeal is not permitted in cases where the defendant has been sentenced to death or life imprisonment. (Rule 30.16.)
5. Revocation of probation. A defendant placed on probation may have his probation revoked if he violates the conditions that have been imposed by the judge. The due process requirements are:
1. A preliminary hearing is held by a neutral probation officer to determine if there is probable cause to believe the defendant violated his probation conditions. Notice of the hearing is given to the defendant.
2. The defendant is given notice of final hearing before the sentencing judge. This notice contains a general statement of evidence against him.
3. The defendant may be heard in person and may present evidence on his own behalf.
4. Generally the defendant has the right to confront and cross-examine adverse witnesses.
5. He has the right to appointed counsel, in the sound discretion of the court.
6. A written statement must be made by the judge as to the evidence relied on and the reasons for revoking probation.
A. A defendant has the right to appeal his case to the appropriate appellate court.
B. The state has no right of appeal if the defendant is acquitted. If the rule was otherwise, the defendant might be placed in jeopardy of being tried again on the same charge, or "double jeopardy."
A. Rule 24.035 motion.
1. A person incarcerated in the Department of Corrections pursuant to a plea of guilty may, within 90 days after his delivery to the Department of Corrections, file a motion to vacate, set aside or correct his conviction and sentence if the conviction was illegally imposed. If an appeal of the judgment is sought, the defendant must file his Rule 24.035 motion ninety days after the appellate court issues its mandate.
a. The motion is filed in the circuit court where the judgment and sentence was imposed.
b. The court shall appoint counsel for an indigent prisoner who files a motion under Rule 24.035.
B. Rule 29.15 motion.
1. A person convicted of a felony after a trial may file a motion to vacate, set aside or correct his conviction and sentence. If the defendant has filed a notice of appeal from his conviction, he must file his Rule 29.15 motion ninety days after the appellate court issues its mandate. If no appeal is taken from the judgment of conviction, the Rule 29.15 motion must be filed within 90 days of his arrival at the Missouri Department of Corrections. The court shall appoint counsel for an indigent prisoner who files a motion under Rule 29.15.
2. Though it is similar to habeas corpus, a Rule 24.035 or 29.15 motion is the procedure that must be followed in Missouri state courts where applicable, instead of habeas corpus.
a. It is a civil, not a criminal, proceeding.
b. The burden is on the defendant (called the "movant") to prove his allegations.
3. Some common examples of alleged violations in Rule 24.035 and 29.15 proceedings include:
a. That the defendant's attorney was ineffective in his representation during the trial.
b. That the defendant, in pleading guilty, did not knowingly waive his constitutional rights (because of intoxication, for example).
c. That evidence has been newly discovered that would prove the defendant not guilty of the charge.
4. It is possible for a defendant convicted in a state court to obtain a further review of federal constitutional or federal law questions in his case in the federal courts. This is accomplished by writ of habeas corpus under 28 U.S.C. section 2254. To obtain a hearing in federal court, the defendant must:
a. Allege that he is in custody in violation of the Constitution, laws or treaties of the United States.
b. Show that he has exhausted all possible avenues of appeal and review in the state courts.
C. The federal courts have similar rules and procedures allowing a defendant to attack a judgment imposed in federal court in violation of the U.S. Constitution or federal law. See 28 U.S.C. section 2255.