As stated in The Legal System in the United States, the trier of fact decides the facts and renders a decision on innocence or guilt using beyond a reasonable doubt as the standard for the burden of proof. The trier of fact in a criminal prosecution is almost always a jury because of the right to a jury trial in the Sixth Amendment. Occasionally, the defendant waives the right to a jury trial and has a bench trial with a judge playing the role of trier of fact. Although the jury determines innocence or guilt during a jury trial, the verdict defines the end of their role as the trier of fact, and the judgesets the sentence. The death penalty is an exception to the jury’s limited role in sentencing; a jury must decide whether to sentence the defendant to death at a separate hearing after the trial has concluded.
Generally, criminal sentencing takes place after the trial. Although the sentencing procedure varies from state to state and from state to federal, a sentencing hearing is typically held after guilt has been determined at trial or after a guilty plea. For many years, judges have had almost exclusive control of sentencing. Although judges are restricted by the fact-finding done at trial, they can receive new evidence at sentencing if it is relevant. For example, a judge is bound by a jury determination that the defendant used a weapon when committing an armed robbery. However, the judge can accept new evidence at sentencing that reveals the defendant had two prior convictions for armed robbery and can enhance the sentence under a habitual offender or three-strikes statute.
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