Criminal Procedure

1. Arrest. The defendant is arrested

• after the police officer determines that probable cause exists or

• after either a witness or the police swears a complaint before a magistrate, and the magistrate issues an arrest warrant.

  The police officer or magistrate may wish to use FactLogic to justify the arrest warrant either alone or by asking colleagues to join him (and thereby increase and report the accuracy of their decision).

[Arrest and Warrant] [Evidence]

2. Initial Appearance. The defendant makes an appearance before the magistrate who informs him of his right to a preliminary hearing.

3. Preliminary Hearing. Probable cause (that a crime has been committed) is determined at the preliminary hearing. The hearing is largely one-sided, with the prosecutor attempting to offer enough evidence to convince the judge that there is probable cause to continue. The prosecutor and the judge can use FactLogic to examine the case. If the judge decides there is probable cause, the defendant is "bound over." Counsel often recommends waiving the right to the preliminary hearing since the police usually have enough evidence for probable cause. Prosecution should enter the facts in FactLogic to determine probable cause.

[Case Management] [Evidence]

4. Indictment/Information. About one-half of the states use a grand jury to indict, and the other half use information to accuse.

• Grand Jury. The prosecutor calls a grand jury that recommends whether to indict. A majority of 12-23 jurors must concur. The grand jurors could use FactLogic to establish probable cause. Since there are 12-23 jurors, their collective judgment could be the subject of statistical analysis. The prosecution could use FactLogic to determine if reasonable certainty (i.e., the opposite of reasonable doubt) exists and to predict the general verdict in the subsequent criminal trial if a True Bill is issued.

[Evidence] [Grand Jury]

• Information. The prosecutor alone decides whether to accuse. The prosecutor could use FactLogic to decide whether either probable cause or reasonable certainty exist.

[Evidence] [Information]

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5. Arraignment. The accused is brought before the court to be notified of the charges in the grand jury indictment or information. He is provided a written copy of the indictment before being asked to enter a plea. The defendant can plead in one of three ways:

• Not Guilty. A trial is scheduled.

• Guilty. The defendant formally admits to the court that he is guilty of the act charged. It is equivalent to a conviction. The judge can impose any penalty that would be allowable after trial.

• Nolo Contendere. If allowed, this plea is equivalent to a guilty plea. The plea cannot be used against the defendant in a civil action for the same acts. The judge can impose any penalty that would be allowable after trial.

Before pleading, the defense can use FactLogic to predict the penalty, depending upon the plea.

6. "Discovery." There is no discovery in a criminal proceeding, but the defendant has a right to know the evidence necessary to prepare a case. Both sides can use this information to predict the penalty with greater accuracy than after arraignment.

7. Pre-trial Conference. The conference is called at the discretion of the court. It involves the judge and both sides. The basic issues and facts of the case are agreed. The purpose is to promote a fair and expeditious trial. Admissions by the defense at the conference cannot be used against the defendant unless they are written and signed by the defendant and his attorney. Decisions from the pre-trial conference are used by FactLogic to predict the penalty with greater accuracy than after "Discovery". If desired, the defense uses FactLogic to justify a change of venue. Both sides use FactLogic to select jurors. If the Internet is available in the court, a shadow jury can be easily and inexpensively arranged to use FactLogic and report its reactions.

[Change of Venue] [Jury Selection] [Shadow Jury]

8. Trial. The defendant can have a trial by jury. If waived, the judge determines the general verdict. If the Internet is available in the court, either side can arrange a shadow jury to concurrently report to the attorneys who can re-evaluate its strategy.

[Shadow Jury]

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9. General Verdict Deliberation. The jury or judge should use FactLogic to improve the accuracy of their decision. For the first time, an unofficial statistical verdict is possible from a jury because FactLogic provides judgments as numbers: A statistical verdict is more accurate and revealing than is the current statutory verdict.

The standard of proof in a criminal case is reasonable doubt. However, to decide a criminal case, reasonable doubt should be converted to its complement, reasonable certainty (e.g., converted to 85% instead of 15%.) Although the court does not specify the value of reasonable certainty, it is said that it should be

• based on reason,

• not fanciful,

• not imagined, and

• cause for prudent men to hesitate before acting in matters of importance upon themselves, etc.

Otherwise, reasonable certainty is at the discretion of the fact finder.

[Evidence] [Statistical Verdicts]

10. Sentencing. Sentencing depends upon the plea. A judge, a jury, or a panel of three or more judges can implement sentencing. Sentencing guidelines apply to federal offenses in federal courts. The sentence imposed by the court or judge upon the defendant after conviction is usually a fine, incarceration, or probation. In some cases the sentence is removal from office or disqualification to hold and enjoy any office or honor, trust, or profit. Aggravating circumstances increase the enormity of a crime and add to its injurious consequences. Extenuating or mitigating circumstances render a crime less aggravated, heinous or reprehensible than otherwise; they may reduce the punishment. For federal crimes, the court considers

• the nature and circumstances of the offense,

• the history and characteristics of the defendant,

• the need for the sentence imposed, and

• the kinds and range of sentencing established under the sentencing guidelines.

  10.1 Verdict Sentencing. If the verdict is Guilty, the sentence is usually in the form of a fine, incarceration, or probation. The judge, jury or panel of judges use FactLogic to evaluate the circumstances to determine the sentence.

[Aggravating and Mitigating Circumstances]

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10.2 Admission Sentencing. The defense and the prosecution arrange a lesser sentence (called a plea bargain), and the defendant receives

• a reduced penalty,

• a lesser offense, or

• dismissal of charges.

The judge uses FactLogic to evaluate the aggravating and mitigating circumstances to determine the sentence.

[Aggravating and Mitigating Circumstances]

11. Appeal Consideration. The defense can appeal if an error occurred, and the prosecution can appeal to clarify a matter of law (but only to clarify it, not to retry the defendant). Conduct post-trial interviews to determine if the jury decided fairly on the evidence presented. If evidence is learned after conviction, use FactLogic to determine its effect on the verdict.

[Post-Trial Interviews]