hi <br><br><div class="gmail_quote">On Mon, Apr 28, 2008 at 6:48 PM, Deirdre Saoirse Moen <<a href="mailto:deirdre@deirdre.net">deirdre@deirdre.net</a>> wrote:<br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
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</div>It's not possible to have a capital case be a bench trial. </blockquote><div><br>Really? I haven't researched the issue, but AFAIK, the right to jury trial resides with the defendant, not the people, and the defendant can waive the right to a jury trial, if he / she so chooses. Most defs do NOT waive that right, simply because the people must get a unanimous jury, AFAIK. Caveat, I don't practice criminal law and I passed the bar in 1993, which was a LONG time ago.<br>
</div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">Also, in<br>
criminal cases, my understanding is that the appeal is predicated on the<br>
assumption that one is guilty (because one has been convicted).</blockquote><div><br>The result is the same, but AFAIK, the way to phrase it is that the appellate court will not revisit the facts and act as a third super-juror. However, the appellate court will reject a jury's finding if the verdict is, by law, inconsistent with the fact adduced at trial. The appellate will hear argument that the jury's decision was based on prejudice and passion, not sound reasoning; will look for errors in admitting documents, testimony, and things into evidence; will look for improper argument on the part of the prosecution; errors in the trial judge's jury instructions, stuff like that.<br>
<br>But yes, on appeal, the burden rests with the defense after a guilty verdict.<br><br>There will be post-trial motions to have the verdict overturned. Those motions will be denied, and then the appeals process will start. <br>
<br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">Criminal appeals are much harder than civil appeals.</blockquote><div><br>True. Most trial and appellate judges are Republicans. Plus, the law has generally moved to the right over the past 40 years. In most cases, the defendant needs to show that any errors or irregularities in the trial were "prejudicial", meaning that the errors actually made their case worse. That rule basically means that the appellate panel can point to any other evidence in the record which might have supported a reasonable jury to support a conclusion upon which the conviction is based.<br>
<br>For example, if a gun is erroneously admitted, an appellate panel might point to the fact that there was properly admitted evidence showing that the defendant owned a gun similar to the gun described by witnesses, and that the def tested positive for gun powder residue shortly after the crime was committed, etc. This is one of the many reasons that I would not practice criminal law; you are setting yourself up to lose repeatedly. That really must bring defense attorneys down. I couldn't stand losing all that often. <br>
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--<br>
_Deirdre blog: <a href="http://dsmoen.livejournal.com/" target="_blank">http://dsmoen.livejournal.com/</a><br>
"Memes are a hoax! Pass it on!"<br>
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