Stages in a Capital Case

Note that not every case goes through all of the steps out­lined here. Some states have different procedures.

I. Pre-Trial

Introduction

Crimes that would be eli­gi­ble for the death penal­ty almost always involve bru­tal mur­ders which shock the com­mu­ni­ty. There is often con­sid­er­able pres­sure on the police to make an arrest, and on the pros­e­cu­tion to get a conviction.

Only rarely do the police come upon such a crime in progress. Usually, they must depend on evi­dence gath­ered at the scene of the crime and on possible eyewitnesses. 

Police often rely on pho­tographs of indi­vid­u­als who have com­mit­ted crimes in the past to dis­play to eye­wit­ness­es who might be able to iden­ti­fy a sus­pect. Thus, even though a par­tic­u­lar indi­vid­ual has no con­nec­tion to a crime, he might become a sus­pect if he looks like the actual perpetrator.

The police might also use infor­mants who hope to gain some­thing by pro­vid­ing infor­ma­tion about a par­tic­u­lar case. Their infor­ma­tion may or may not be reli­able, but may form the basis for build­ing a case around a particular suspect. 

Note that not every case goes through all of the steps out­lined below. Some states have different procedures.

Arrest

The tak­ing or keep­ing of a per­son in cus­tody by legal author­i­ty in response to a crim­i­nal offense or charge. 

Arraignment

The ini­tial step in a crim­i­nal pros­e­cu­tion where­by the defen­dant is brought before the court to hear the charges and enter a plea.

Preliminary hearing

A crim­i­nal hear­ing to deter­mine whether there is suf­fi­cient evi­dence to pros­e­cute an accused per­son. If suf­fi­cient evi­dent exists, the case will be bound over for grand-jury review or an infor­ma­tion will be filed in the trial court.

Grand jury

A body of peo­ple (often 23) who are cho­sen to sit per­ma­nent­ly for at least a month and who decide whether indict­ments should be issued. If the grand jury decides that the evi­dence is strong enough to hold a sus­pect for tri­al, it returns a bill of indict­ment (a true bill) charg­ing the sus­pect with a specific crime.

Indictment

The for­mal writ­ten accu­sa­tion of a crime, affirmed by a grand jury and pre­sent­ed to a court for com­mence­ment of crim­i­nal pro­ceed­ings against the accused.

Information

A for­mal crim­i­nal charged filed by a pros­e­cu­tor with­out the aid of the grand jury. The infor­ma­tion is used for the pros­e­cu­tion of mis­de­meanors in almost all states, many of which allow for its use for felony pros­e­cu­tions as well.

Hearing on pre-trial motions

A judi­cial ses­sion held for the pur­pose of decid­ing issues of fact or of law, some­times with wit­ness­es tes­ti­fy­ing, before the trial begins.

Intention to seek the death penalty

At some point before the tri­al, the pros­e­cu­tion announces its inten­tion to seek the death penal­ty if the defen­dant is found guilty.

II. Guilt phase trial

Jury Selection (“voir dire”)

A pre­lim­i­nary exam­i­na­tion of prospec­tive jurors by a judge or lawyer to decide if the prospects are qual­i­fied and suit­able to serve on a jury. In a cap­i­tal case, prospec­tive jurors must be ​“death qual­i­fied,” i.e., ques­tioned about their abil­i­ty to con­sid­er both aggra­vat­ing and mit­i­gat­ing evi­dence and to ren­der a death sen­tence in an appro­pri­ate case. If the judge believes that a juror’s feel­ings about the death penal­ty would impair his or her abil­i­ty to judge the case and choose the pun­ish­ment fair­ly, that juror will be dis­missed ​“for cause.” There is an unlim­it­ed num­ber of ​“for cause” chal­lenges and typ­i­cal­ly all jurors who say that they oppose the death penal­ty are exclud­ed. Jurors who are not elim­i­nat­ed by the judge ​“for cause” because of their death penal­ty views can be elim­i­nat­ed by lawyers through ​“peremp­to­ry chal­lenges.” The lawyers from both sides are allowed to exclude a lim­it­ed num­ber of jurors with­out hav­ing to give any rea­son or show any bias, although they are not allowed to base peremp­to­ry chal­lenges sole­ly on the juror’s race, gen­der or religion.

Opening statements

The state­ments, at the out­set of a tri­al, in which the lawyer for each side gives the fact-find­er (the jury, or some­times the judge alone) a pre­view of the case and of the evi­dence that will be submitted.

Prosecution’s case

The gov­ern­ment, which has the bur­den of prov­ing the defendant’s guilt beyond a rea­son­able doubt, offers evi­dence in an effort to con­vince the jury that the defen­dant com­mit­ted the offense. The pros­e­cu­tion may present many dif­fer­ent types of evi­dence, includ­ing eye­wit­ness tes­ti­mo­ny and forensic evidence.

Defendant’s case

The defen­dant offers evi­dence to rebut the prosecution’s evi­dence. Although the defen­dant has no bur­den of proof, and is pre­sumed to be inno­cent until proven oth­er­wise, he or she may intro­duce evi­dence either to weak­en the prosecution’s case or to help estab­lish inno­cence. The defense may also present may dif­fer­ent types of evi­dence, includ­ing ali­bi tes­ti­mo­ny and expert tes­ti­mo­ny that coun­ters the prosecution’s case.

Closing statements

The final state­ments to the judge or jury before they begin their delib­er­a­tions to decide the case, in which the lawyer for each side asks the jury, or judge, to con­sid­er the evi­dence and apply the law in his or her client’s favor.

Jury instructions

The direc­tions or guide­lines that the judge gives the jury con­cern­ing the law that is applic­a­ble to the case.

Verdict

The jury’s find­ing or deci­sion on whether the defendant’s guilt on the charges has been proved beyond a reasonable doubt.

III. Penalty Phase Trial

Aggravating circumstances

Facts that make a crime worse or more seri­ous by such cir­cum­stances as the facts of the crime, the defendant’s pri­or crim­i­nal record, etc. Some aggra­vat­ing cir­cum­stances are very spe­cif­ic, e.g., the mur­der or more than one vic­tim. Other aggra­va­tors are broad, e.g., the mur­der was com­mit­ted in a heinous, cru­el or atrocious manner.

Mitigating circumstances

Facts that do not jus­ti­fy or excuse an act or offense, but may reduce the degree of moral cul­pa­bil­i­ty, and there­by reduce the penal­ty. Examples include men­tal impair­ments, deprived back­ground, etc.

Victim impact statements

Statements read into the record, or pre­sent­ed through tes­ti­mo­ny of wit­ness­es, dur­ing sen­tenc­ing to inform the jury of the finan­cial, phys­i­cal, and psy­cho­log­i­cal impact of the crime on the vic­tim and the victim’s family.

Jury sentence recommendations

In 2002, the United States Supreme Court held that defen­dants are enti­tled to have jurors, rather than a judge, deter­mine whether the facts of the case make them eli­gi­ble for the death penalty. 

Sentencing

After mak­ing that deter­mi­na­tion beyond a rea­son­able doubt, either the jury or a judge may decide on the actu­al sen­tence, and the court for­mal­ly pro­nounces pun­ish­ment on the defen­dant. As of 2022, every death-penal­ty state except Alabama requires a unan­i­mous jury rec­om­men­da­tion of a death sen­tence in order for a judge to impose a death sen­tence, except in cas­es where the defen­dant explic­it­ly waives their right to a jury.

IV. Direct Appeal

Introduction: The Appeal Process

Once a per­son is found guilty, the pre­sump­tion of inno­cence is removed. The defen­dant now has the bur­den of show­ing that a crit­i­cal mis­take was made in the process that convicted him.

Most of the review which occurs does not revis­it fac­tu­al issues decid­ed at tri­al; rather the direct appeal deals with pro­ce­dur­al issues. Some states have had time lim­its as short as three weeks for the admis­sion of any new evi­dence after the con­clu­sion of the trial.

The con­sti­tu­tion does not require that a defen­dant be pro­vid­ed with a lawyer rep­re­sent­ing him through­out the appeals process. Even when rep­re­sent­ed, the lawyer must be aware of numer­ous pro­ce­dur­al rules for filing appeals. 

If the rules are not pre­cise­ly fol­lowed, issues may be lost for­ev­er from the appeals process. 

Motion for a new trial

A post-judg­ment request that the court vacate the judg­ment and order a new tri­al for any of var­i­ous rea­sons, such as insuf­fi­cient evi­dence, new­ly dis­cov­ered evi­dence, or jury mis­con­duct. In some juris­dic­tions, this motion is required before a par­ty can file an appeal. In most cas­es, this motion is quickly denied.

Appeal to state’s highest criminal court

A pro­ceed­ing under­tak­en to reverse a deci­sion by bring­ing it to a high­er author­i­ty. The defen­dant sub­mits the tri­al court’s deci­sion to a high­er court for review and possible reversal.

Petition to U.S. Supreme Court for writ of certiorari

The Supreme Court can, at its dis­cre­tion, decide to review the deci­sions of a low­er court on fed­er­al issues. However, the Supreme Court only takes about 1% of the cas­es sub­mit­ted for its review.

V. Post-Conviction Review

Petition to state trial court

The defen­dant can raise issues in his case that are not reflect­ed in the record on appeal, such as inef­fec­tive assis­tance of tri­al coun­sel, pros­e­cu­to­r­i­al mis­con­duct, or juror mis­con­duct. This peti­tion is usu­al­ly sub­mit­ted to the same judge who presided over the trial.

Appeal to state’s highest criminal court

The deci­sion of the state’s tri­al court can be appealed to the state’s high­est criminal court.

Proportionality review

The state appel­late court can com­pare the sen­tence in the case being reviewed with sen­tences in sim­i­lar cas­es with­in the state. Where uti­lized, this prac­tice can help the state to iden­ti­fy and elim­i­nate sen­tenc­ing dis­par­i­ties. However, many states have aban­doned a for­mal review of this type. 

Petition to U.S. Supreme Court for writ of certiorari

See the def­i­n­i­tion above. A defen­dant can ask the Supreme Court to review the denial of his post-con­vic­tion review, just as the defen­dant could ask the Supreme Court to review the denial of his direct appeal.

VI. Federal Habeas Corpus

Petition to Federal District Court

A plead­ing pre­sent­ed to the fed­er­al court seek­ing a writ to bring a per­son before a court to ensure that the party’s impris­on­ment is not ille­gal. Such peti­tions are now close­ly reg­u­lat­ed and lim­it­ed through fed­er­al leg­is­la­tion passed in 1996.

Evidentiary Hearing

A hear­ing before a fed­er­al judge sim­i­lar to a tri­al, in which evi­dence is pre­sent­ed to prove or dis­prove a state­ment in the fed­er­al habeas cor­pus peti­tion. The judge has the dis­cre­tion to deny such a hearing. 

Appeal to Federal Court of Appeals

The los­ing par­ty may appeal the District Court’s rul­ing to the U.S. Court of Appeals. The appeal is heard by a pan­el of three judges.

En Banc review

A rarely grant­ed review of the panel’s deci­sion in the defendant’s case in which the full Circuit Court of Appeals participates. 

Petition to U.S. Supreme Court for writ of certiorari

See the def­i­n­i­tion above. Either par­ty can ask the Supreme Court to review the deci­sion of the Court of Appeals.

VII. Clemency

Pardon board

An admin­is­tra­tive board or pan­el autho­rized to assist the gov­er­nor in mak­ing a clemen­cy deci­sion. In a few states the gov­er­nor is not autho­rized to grant clemen­cy unless the par­don board has first recommended it.

Executive clemency or commutation

The pow­er of the state’s gov­er­nor, or the President (in fed­er­al cas­es), to reduce the pun­ish­ment imposed by the courts

VIII. Execution

Death row

The area of a prison where those who have been sen­tenced to death are confined.

Death warrant

A paper, typ­i­cal­ly signed by the gov­er­nor or a judge, set­ting a date of exe­cu­tion. The war­rant is then served on the defen­dant and his attor­ney. Typically, short­ly before the exe­cu­tion, the inmate is moved to a cell clos­er to the death cham­ber and kept on 24 hour suicide watch. 

Execution

The car­ry­ing out of a death sen­tence by lethal injec­tion, elec­tro­cu­tion, lethal gas, hang­ing, or firing squad.