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Sentencing on Acquitted Conduct

  • When a judge enhances the sentence of a convicted person based on conduct which a jury specifically acquitted them (known as acquitted conduct), this is known as sentencing on acquitted conduct.

Sentencing on Unconvicted Conduct

  • When a judge enhances the sentence of a convicted person based on conduct of which they were never convicted (known as unconvicted conduct), usually because they were never even criminally charged and tried for it, this is known as sentencing on unconvicted conduct.

Sequester, Sequestration

  • When a judge sequesters a jury (a process known as sequestration), the jury is isolated from the public to prevent jurors from coming into contact with members or products of the media, other people interested in the trial, etc. that might prejudice them or create the appearance of prejudicing them in some way.

    In most cases, jurors go home at the end of each day and return in the morning. They are typically asked not to do any research on the case or discuss it with others, but otherwise are relatively free to live their lives normally outside of the trial.

    Sequestered jurors, however, are typically housed in controlled conditions, such as at a hotel with limited access to news sources and other outside influences. They may be subject to many other controls such as monitoring of their communications, control of their entertainment, eating together as a group isolated from others, and so on.

    Publicity surrounding a high profile case as well as harassment, threats, bribes, etc. can either unfairly affect jurors' judgment or give the appearance of unfairly affecting their judgment of the trial before them. These or other concerns may lead judges to sequester juries.

    However, the act of sequestration can itself also be prejudicial by subtly planting the idea in jurors' minds that they require protection because the accused is guilty. Sequestration may also contribute to the phenomenon of "groupthink", where jurors spend so much time together that the desire for group harmony stifles individuals' ability to engage in independent thought and judgment.

Special Verdict

  • When a jury delivers a special verdict, it reports its specific findings on specific factual questions, without necessarily issuing a judgment on which party prevails.

    Contrast this with a general verdict.

Stacking Charges, Stack Charges

  • When a prosecutor inflates the number and severity of charges against an accused individual, this is often referred to as "stacking charges" or "charge-stacking".

    The idea behind stacking charges is not an attempt to secure a reasonable penalty for criminal activity, but rather to inflate the potential penalty at risk to intimidate the accused into pleading guilty. Prosecutors who stack charges have significant leverage with which to bully defendants because the more charges that are on the table, the longer and more severe the penalty an accused person risks if they turn down a plea bargain.

    This practice of stacking charges has led even innocent people to plead guilty, fearing that if they lose in a trial by jury, they will be subject to drastically more harsh punishment in the form of what is known as the trial tax.

Standard of Proof

  • A standard of proof is the level/amount of evidence necessary to establish proof in a given situation. The standard of proof varies in different legal situations and is specified by law.

    Standards of proof have qualitative definitions that can be somewhat fuzzy or debatable, though it is widely agreed which such standards are more or less serious than which other standards. Some sources will associate the various standards of proof with a percentage indicating degree of certainty, but fact-based quantification of the degree of certainty in such matters is generally not possible in real life. Such evaluations are, in practice, largely going to be opinion-based.

    Some standards of proof, in order from lowest to highest, that are applicable to legal trials include:

    Probable Cause
    You may have heard the term probable cause in the context of policing activities such as conducting a search or making an arrest. It is also the standard typically used in the United States by modern grand juries to decide whether or not to indict an individual. Although there are other standards of proof that are lower, this is the lowest standard of proof of all the standards presented in this list.

    Unlike the long-standard beyond a reasonable doubt standard of proof for conviction by a petit jury, the probable cause standard of proof for indictment by a grand jury is not a fundamental standard in the American legal system. In fact, historical evidence demonstrates that in the early years of the United States, probable cause was commonly considered among America's judges to be an inappropriately lax standard for indictment.

    Different courts may define probable cause slightly differently, but in general the probable cause standard is met when there is evidence of guilt but not necessarily enough to convict at trial or even enough evidence to tip the scales past even odds. There could even be more evidence that an accused person is innocent than that they are guilty and yet 

    Preponderance of the Evidence
    Preponderance of the evidence is the most common standard of proof in civil trials. To meet this standard of proof, the party who bears the burden of proof must show their contention is more likely true than not. In other words, the scales must be tilted only slightly past even odds to meet this burden.

    Clear and Convincing Evidence
    The clear and convincing evidence standard used in some civil trials is lower than beyond a reasonable doubt required in criminal trials, but higher than the preponderance of the evidence standard used more commonly in civil trials in the United States. To meet the clear and convincing evidence standard of proof, the party who bears the burden of proof must show their contention to be highly probable and not just more likely than not. 

    This standard typically comes into play where something more serious than money is at issue. For example, it may be relevant in disputes involving civil liberties, parental rights, and so on. In Colorado v. New Mexico (1984), the United States Supreme Court held Colorado to a clear and convincing evidence standard when Colorado proposed to divert water from a river that originates in Colorado, but whose water was historically used exclusively by those in New Mexico.

    Proof Beyond a Reasonable Doubt
    Proof beyond a reasonable doubt is the standard of proof that must be met for a criminal conviction. This standard is difficult to define, and courts widely acknowledge this.

    Judges may be legally discouraged or outright prohibited from giving jurors detail on what is meant by reasonable doubt beyond what is provided for by law or used in standard jury instructions. In litigation regarding such matters, some parties have argued that the concept of reasonable doubt is self-evident and that attempts to define it in further detail have the effect of watering it down and lowering the burden of proof that the prosecution must fulfill to secure a conviction.

    Consequently, it is largely up to individual jurors to decide for themselves whether their doubts are reasonable and whether or not the prosecution has met the burden of proof necessary to convict someone.

    Keep in mind that while the standard of beyond a reasonable doubt does not require absolute certainty, it is the highest burden imposed in United States courts. It is often described as proof beyond a moral certainty, albeit not absolute certainty. Even if you as a juror feel the evidence shows the defendant is more likely than not to have committed the offense or even that it is highly probable the defendant committed the offense, that does fulfill the standard of beyond a reasonable doubt.




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