Protections for criminal defendants

Anyone who has studied civics in the USA knows of a number of protections specified in the U.S. Constitution:

-No ex post facto law. Art. I, §9 and 10. If an act was lawful when it was performed, the performer cannot be convicted of a crime as a result of a law enacted after the performance.

-Prohibition against "unreasonable searches and seizures". Amendment IV.

-Prohibition of double jeopardy. Amendment V.
This protection takes two forms:

1)A defendant who is found "not guilty" of a more serious charge cannot have a second trial on a lesser included offense. For example, if D is found "not guilty" on a charge of felony murder (e.g., incidental killing of someone during the commission of a felony, such as robbery), then D cannot be tried for the underlying felony (e.g., robbery).

2) The prosecution cannot appeal a "not guilty" verdict. Of course, the criminal defendant can appeal a "guilty" verdict and an incarcerated criminal can file a "habeas corpus" writ.

     However, it is possible to try a defendant in criminal court and then try the same defendant again in civil court, for the same event. The most common example of such two trials is a criminal prosecution for homicide and then have a second trial for the same defendant for the tort of wrongful death: the most famous example of this situation is the cases of O.J. Simpson. While legal scholars carefully explain the distinction between criminal and civil law, the plain fact is that one can be tried twice for the same event. Another situation in which one can have two trials for the same event is a prosecution under state law (e.g., for assault and battery) in a state court, then a second prosecution in a federal court under federal statute (e.g., civil rights violation).

Indigent defendants have the right to an attorney who is paid by the state, even during custodial questioning by police. Miranda v. Arizona, 384 U.S. 436 (1966).

It may come as a surprise to know that these protections are not available in civil law.
The standard in tort cases is what a reasonable and prudent man would have done, the details of applying this standard to the facts of the case is decided by the jury, and unknown to the defendant until the end of the trial.

       In criminal law, police generally must first obtain a search warrant in a proceeding showing a "neutral and detached" magistrate that there is "probable cause", before searching or seizing items from a person's house.

       In civil law, an attorney may request documents or a visit inside a building. (Federal Rule of Civil Procedure 34). In civil law, an attorney may demand information from the opposing party about any matter that is relevant to the case, provided that information is not privileged. In civil law, an attorney may properly demand information that would be inadmissible at trial, if such demand "appears reasonably calculated to lead to the discovery of admissible evidence". Federal Rule of Civil Procedure 26(b)(1). An attorney may even take the deposition of nonparties in a civil case, and require them to bring documents with them.

The prohibition against double jeopardy applies only to criminal trials. The corresponding concept in civil litigation is res judicata: one can have only one trial for claims arising from one transaction or occurrence.

In a criminal case, the suspect or defendant has the right to remain silent during questioning by police and prosecuting attorneys. In a criminal case, the defendant may choose to refuse to be a witness, and the jury may infer nothing from the defendant's choice not to testify. 

However, in a civil case, the defendant must be available and cooperative for depositions and testimony as a witness in the trial. In fact, the defendant in a civil case in Federal court must voluntarily provide his/her opponent with a copy of documents "in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings." Further, the defendant in a civil case must voluntarily provide names of people who are "likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings." In other words, the defendant in a civil case must help his/her opponent collect evidence that will defeat the defendant. And, at trial, if a party invokes their fifth amendment privilege against self-incrimination, then the judge will instruct the jury that they may make an adverse inference against the party who refused to testify. There are often several years between the filing of a complaint in a civil case and the trial. So much for "speedy trial"!

People who cannot pay for an attorney (legal fees for trial preparation often run to more than US$ 100,000) are practically unable to obtain access to the courts in civil cases. The one notable exception is in tort law, where attorneys for plaintiffs often take cases with the possibility of large awards (e.g., more than US$ 500,000) on a contingency fee: the attorney is paid, for example, 1/3 of any award, but the attorney is paid nothing for his/her time if plaintiff loses. However, the plaintiff usually pays for expert witnesses, deposition transcripts, and other expenses. These expenses can be tens of thousands of dollars.

Jury trial

A jury trial (not to be confused with grand jury proceedings) is a trial where the judge(s) are supplemented by a jury, which is made of citizens who are not, in general, justice professionals. It is most commonly seen in common law jurisdictions, but is also present in some civil law jurisdictions; some civil law jurisdictions also use lay assessors.

The role and importance of jury trials depending on the jurisdiction

• In most common law jurisdictions, the jury is responsible for findings the facts of the case, while the judge determines the law. These "peers of the accused" are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions. Typically, the jury only judges guilt or innocence, but the actual penalty is set by the judge.
• In France and countries organized in the same fashion, the jury and several professional judges sit together to determine guilt first, then, if guilt was determined, the appropriate penalty.

Some jurisdictions with jury trials allow the defendant to waive their right to a jury trial, this leading to a bench trial. Jury trials tend to occur only when a crime is considered serious. In some jurisdictions, such as France, jury trials are reserved, and compulsory, for the most severe crimes and are not available for civil cases. In others, such as the United Kingdom, jury trials are only available for criminal cases and very specific civil cases. In the United States, jury trials are available in both civil and criminal cases.

In the United States, because jury trials tend to be high profile, the general public tends to overestimate the frequency of jury trials; the vast majority of cases are settled by plea bargain which removes the need for a jury trial.