The Posttrial Process

If the jury returns a verdict of guilty, the trial judge imposes a sentence and the defendant may appeal his or her conviction.

Posttrial motions

With a guilty verdict, the defense is allowed to file a motion for a new trial. If the trial judge sustains this motion, a new trial will take place.

Presentence investigation

Before sentencing, a probation officer conducts a presentence investigation. It focuses on the convicted person's present offense, criminal history, prospects for rehabilitation, education, employment record, and personal problems. The presentence report contains a recommendation as to the appropriate sentence and exerts a major influence over judges' sentencing decisions. In addition to being used in sentencing decisions, these reports are put to a variety of other uses as well. They assist probation and parole officers in planning for the supervision and rehabilitation of probationers and parolees, aid prison officials in classifying inmates and assigning them to prison programs, and provide parole board members with information upon which to base release decisions.

Victim impact statements

Most states permit victims to submit statements about the impact of a crime to a judge before sentencing. A few states allow the victims to speak personally in court. Prosecutors welcome the use of impact statements because they allow victim participation in the courts process. Many legal experts oppose the use of victim impact statements on two grounds. First, criminal trials should be conducted for the purpose of doing justice for the people at large rather than for gaining revenge for victims. Second, allowing the introduction of victim statements runs the risk that judges and/or juries will impose sentences based on perceptions of the victim's worth rather than on the seriousness of the crime.

The sentencing hearing

Typically, the sentencing hearing involves the arguments of the prosecution and defense for or against the recommended sentence in the presentence report. Defendants have few rights during sentencing proceedings, although they enjoy the Sixth Amendment right to have their attorneys assist them during the hearing. Defendants also have a right of allocation at a sentencing hearing—the right to make a statement to the court before a sentence is imposed.

Factors that influence sentencing decisions

In making the sentencing decision, most judges consider two key factors—the seriousness of the crime and any aggravating or mitigating circumstances. In general, the more serious the crime, the harsher the sentence.

Concurrent versus consecutive sentences

On occasion, an offender receives multiple sentences for multiple crimes. The judge can order the sentences to be served concurrently or consecutively. Sometimes judges give concurrent sentences, allowing defendants who have been convicted of two or more crimes to serve the sentences simultaneously. At other times, judges impose consecutive sentences, which means that the defendants serve the sentences one after the other.


An appeal is a claim that one or more errors of law or procedure were made during the investigation, arrest, or trial. Appeals usually assert that a judge made an error in admitting evidence that was gathered in violation of the accused's rights or made errors in courtroom rulings. Appeals are based on questions of law or procedure, not on questions of the defendant's guilt or innocence. Neither the federal government nor the states can appeal an acquittal (a verdict of not guilty).

An appellate court can affirm (uphold) the decision of the lower court or it can reverse (overturn) the lower court's decision. Of those who appeal, 20 percent have their convictions overturned. If an appellate court discovers a harmless error (an unimportant or insignificant denial of a constitutional right), it still affirms. But if an appellate court finds a serious error that affects substantial constitutional rights, it reverses. Instead of setting the defendant free, the appellate court sends the case back to the trial court for a new trial. The prosecutor then decides whether to retry the case. If the prosecutor reinstates criminal charges, there is no double jeopardy problem because the reversal makes the first trial moot (for legal purposes, the first trial never happened). Often the defendant is tried for a second time, but not always. On occasion, the appellate court will allow a retrial only with key prosecutorial evidence excluded from the second trial because the appellate court deems it inadmissible.