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Chapter 9
Trial and Punishment
Constitutional Law
13th Edition
Introduction
[No] person [shall] be subject for the same offense to be twice
put in jeopardy of life or limb . . .
—Fifth Amendment
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Double Jeopardy
The double jeopardy clause of the Fifth
Amendment:
•Prohibits government from trying the same
9 Trial and Punishment
When Double Jeopardy Applies
•An earlier prosecution must progress to the
point of jeopardy attachment
oIn a jury trial, jeopardy attaches as soon as a
jury has been empanelled and sworn
9 Trial and Punishment
Double Jeopardy Does Not Apply
•Retrial after an early termination requested by
the defendant
oException: if the need for making the request
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Multiple Punishments
•Eighth Amendment distinguishes between civil
and criminal penalties
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Speedy Trial
•Sixth Amendment guarantee
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Statutes of Limitation
•Criminal charges must be made within a fixed
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Determining Violations
The following factors are considered when
determining whether the Sixth Amendment
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Public Trial
•Sixth Amendment guarantee
•Three primary benefits:
1. Witnesses are more likely to tell the truth
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Confrontation of Witnesses
•Sixth Amendment guarantee
•Enhances the reliability of testimony
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Fair and Impartial Tribunal
The judge and members of the jury panel must:
•Not have any stake in the outcome of the case
•Not bear any animosity toward the specific
defendant
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Pretrial Publicity
•Pretrial publicity can affect the jury pool
•Courts consider the following factors to
determine if pretrial publicity has
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Averting Media Contamination
•Media gag orders
oJudges cannot restrict that which transpires in
•Closure orders
oJudges may close portions if:
▪There is substantial probability that the right to a
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Right to a Jury
•Constitutional entitlement:
oOffense must carry a penalty of six months or more in
jail
•Selection process:
oJury venires must be drawn from a source that is fairly
representative of the community
of only six persons
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Acceptable Punishments
•Eighth Amendment prohibits cruel and
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The Death Penalty
•May be imposed only for crimes that involve taking a
human life
•The trial must be conducted in two phases, with the
sentencing phase kept separate from the guilt phase
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Unfair Application
•Minorities and the poor are much more
likely than others to receive the death
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