Is it possible that we do criminal trials backwards? In the United States, criminal trials have two parts: *1. Determination of guilt or innocence *2. Determination of penalty Does that make sense? What if we did it the other way around? What if, first, the prosecutor and defense attorney had to convince the judge or jury of the appropriate punishment for the crime in question. In this phase, the state would present the facts of the case. The defense could challenge the facts just as they do now. But there’d be no attempt to prove that any particular suspect perpetrated the crime.