Could a judge sentence someone who isn&#39;t on trial?
<p>A somewhat common TV trope is for a judge to sentence someone who isn't actually on trial - for example, the real culprit bursts into the middle of a trial and confesses, and then the judge says, "In that case, I sentence YOU..."</p>

<p>Could this ever happen for real? (United States) It seems like a major violation of due process.</p>

<p>The closest real-world example I can think of is that I know judges have had people thrown in jail for bad behavior in the courtroom. But I'm not sure if that counts as a "sentencing" or if it is more like an arrest for contempt of court.</p>

<p>No. This isn't possible.</p>

<p>A judge can only sentence someone after they have pleaded guilty or been found to be guilty, following an indictment or criminal complaint, and multiple advisements of rights.</p>

<p>Historical speaking, the British system of law dates back to the Magna Carta and is designed to prevent abuse of power by the King / State Government. Think of the Red Queen from Alice in Wonderland shouting "off with his head" against anybody who displeased her in the slightest.</p>

<p>The social contract permits the King / State Government to retain their monopoly on violence, but under the restriction that the State is only permitted to use it in accordance to both the rule of law and the consent of its citizens.</p>

<p>For the King/State to legally use violence/imprisonment against you:</p>

<ul>
<li>The King's/State's Police may arrest you temporarily</li>
<li>You have the right of Habeas Corpus, the right to a trial</li>
<li>You are assumed in law innocent until proven guilty</li>
<li>The King/State must prove your guilt beyond reasonable doubt</li>
<li>The Judge is a servant of the King, thus can only judge the King's law but NOT guilt/innocence.</li>
<li>The verdict (and your fate) is decided by a jury of 12 of your citizen peers </li>
<li>The jury deliberates the case in the Jury room, without the Judge</li>
<li>The jury is forbidden from explaining its decision</li>
<li>Implicit in this is the right of Jury Nullification (refusing to convict against an unjust law)</li>
<li>It is only with the unanimous consent of your peers that the King/State/Judge can legally pass sentence</li>
</ul>

<p>In the US, this conceptual framework is encoded in the Bill of Rights, especially the 5th, 6th, 7th and 8th Amendments.</p>

<blockquote>
  <p>"The real culprit bursts into the middle of a trial and confesses"</p>
</blockquote>

<p>If the jury has already concluded a verdict, then the Judge would most likely:</p>

<ul>
<li>suspend the current trial (pending a new verdict)</li>
<li>order the arrest and full trial of the new "confessor"</li>
<li>keep the originally accused imprisoned/on-bail (it could all be a ruse)</li>
<li>wait until a jury has passed "guilty" verdict on the "confessor" before passing sentence</li>
<li>accept the defence motion requesting a retrial of the original case</li>
</ul>

<p>However, if the situation was reversed, and the jury has just passed a not-guilty verdict on the "defendant" who suddenly confesses before sentencing, then there is the slightly complicated issue of Double Jeopardy. In theory, this prevents a person from being tried twice for the same crime, so all you need is one not-guilty verdict to get off scot-free. However, in practice, lots of countries have various "exceptions" to this rule for situations just like this.</p>

<p>No. A judge can not pass a verdict on someone who isn't on trial. And who gets put on trial is the decision of the prosecutor. So when a court comes to the conclusion that the crime was without doubt committed by a different person who also happens to be present, then:</p>

<ol>
<li>The prosecution would drop the charges, resulting in the current suspect to go free.</li>
<li>The prosecutor would ask for the new suspect to get arrested (if
they deem that necessary).</li>
<li>The prosecution would indict the new suspect.</li>
<li>There would be a completely new trial for the new suspect.</li>
</ol>

<p>However, a random confession by a witness alone would likely not be enough for the prosecution to drop the charges. The reason is that in most jurisdictions, once they do that, they can not charge the same person for the same crime again. There is a rule called <a href="https://en.wikipedia.org/wiki/Double_jeopardy" rel="nofollow noreferrer">double jeopardy</a> in many jurisdictions which forbids to put the same person on trial for the same incident twice. So it is very well possible that when the new suspect is put on trial, they could surprise everyone by suddenly pleading "not guilty". They claim that their previous confession was a lie. If that's true, then the perpetrator of the original crime would go free while the new suspect could only be charged with perjury (still a serious crime, but perhaps less serious than the original one).</p>

<p>If a judge during one criminal trial finds that there is another potential criminal act, it refers that information to the district attorney. Only DA is authorized to summon and bring a case to a grand jury and only a grand jury can charge someone with a new criminal charge. That has some differences based on jurisdiction, but is very similar between jurisdictions inside the US (state and federal court system). Also, it is a discretion of DA whether to do that or not and after grand jury grants it whether to arrest and continue or not. Same as DA can withdraw any case in any phase before final decision. They often use that when they have some new evidence or when they are changing strategy.</p>

<p>There are things outside of that where a judge can charge someone indirectly (without presence) or directly (in presence) for Contempt of Court. Indirect can happen if you try to talk with jurors or to defy court order not to talk or not do do something during court proceeding. Direct is, for example, if you are yelling at the judge during hearing or show disrespect, etc. For some more serious situations you may request a jury trial and generally you are protected by all rules for other criminal procedures. Contempt of court can be misused and it, as any other action of the judiciary, can be corrected by an appeal to a higher court.</p>

<p>Do not forget that "any judge can do everything" but it doesn't mean that it will not be corrected by an appellate court.</p>

<p>Absolutely not.</p>

<p>The Fifth and Sixth Amendments say the accused has the right to, not only a trial by jury, but an indictment by a grand jury if it's a felony case. It's possible to waive those rights, but it would have to be explicit.</p>

<p>There are various defenses that may be available to the person even if they did it. Maybe the statute of limitations ran out while the other trial was going on. Maybe it was done in self-defense, or due to coercion, or necessity. Maybe the person has diplomatic immunity. Maybe double jeopardy applies. You can't know if you don't so much as have a hearing.</p>

<p>Even if the person is guilty and waives all rights, sentencing is done on a case-by-case basis. If the judge was about to sentence person A to X years in prison, that does not necessarily mean he would (or should, or perhaps even could) automatically sentence person B to X years in prison for the same crime. One person might have an existing criminal history, or there may be aggravating or mitigating factors that apply. Indeed, the mere fact that one defendant went to trial while the other voluntarily confessed would often result in a different sentence even if all else was the same.</p>

united-states due-process