Module 3 Flashcards
The Criminal Court Process
-Arrest and Booking
-Initial Appearance (Extremely important)
~Bail
~Pretrial Release/ Detention
-Prelim Hrg/ Grand Jury
~DA Charge
-Arraignment
~The Plea
-Pretrial Motions
-Trial
~Public Speedy
~Jury Process
-Post-Trial
Initial Appearance (First appearance in a court)
-Most people should not plea guilty or not guilty
Initial Appearance
-Notice of rights/ charges
-Appointment of Counsel
-Bail Decision
Boulder Shooter Initial Appearance
-
Pretrial
-Detain or Release?
~Detain (No Bail)
~Release (Bail)
-What competing interests?
~Innocent until proven guilty v. Public Safety
-Bail
~Money or property to guarantee the defendant will appear in court
Constitutional right to bail/ release?
**8th Amendment
**No constitutional rights for excessive bail
**Not a right to bail
Judge Considers
-Bail
-Safety threat or flight risk
-Seriousness of the crime
-Prior criminal record
-Weight of evidence and probability of conviction
-Seriousness of sentence
-Character, reputation, mental condition
-Family/ community ties
Bail
-Bail = $50,000
-Bondsman charges = 10% ($5,000)
~ Non-refundable
-Bondsman buys a bond = $2,500
-Bondsman keeps the remaining $2,500
-Defendant fails to show = insurance co. pays on the bond
~Bondsman = bad rating with insurers
~Judge issues a bench warrant for the arrest
*Bail jumping is a separate criminal offense
-Almost the same considerations that a judge uses plus
~Community ties
~Property/assets
Pretrial Detention
-Arguments against
~Coercive
~Abuse by judges to punish defendants before trial
~Deprives defendant opportunities to work on his case
~Disrupts work and family life
-Arguments for
~Allows police/ DA access to offenders
~Community Safety
~Tough on-crime policies
-Release “decriminalized” certain offenses
75% of jail populations are pretrial detainees
74% are African-Americans
Annual cost: $13B
The System
-US
~Adversarial System of Justice
-Prosecutor v. Defense
-State v. Individual
The Number
-$150 B annually on CRJ System
-50% to police and prosecutors
-2-3% to public defenses/indigent defense
~Texas and Georgia worse states in the disparity
The Adversarial System of Justice Prosecution
-Prosecutor is the most powerful in the Justice system for these reasons
-Politics and Discretion
~Decision to charge/prosecute/ dismiss
~Decision to refuse plea deals
~Death penalty cases
-Power
~Decision to charge
~Type of charge(s)
~Bail
*Major role (prefer to keep people in jail)
~Plea agreements
~Sentencing recommendations
~Controls evidence
*Most of the evidence since they work with the police
-Immunity
~Connick v. Thompson (2011)
The Defense
-The Sixth Amendment
The Right to Counsel
-Gideno v. Wainwright (1963)
~Right to counsel for all indigent defendants charged with a felony
*Birth of the public defender
Defense Lawyer Role
-Defending the Guilty
~Protect the defendant against the government
-Defending the Innocent
~Requires an actual defense
*Investigation, evidence, experts, strategies - money
The Courts
-“Dual System”
~State and Federal Courts
-Jurisdiction?
~Geography
~Subject Matter (law)
~Hierarchy
State Courts
-Appellate Courts (Appeals)
~Courts of Last Resort
*State Supreme Courts
~Intermediate Appellate Courts
-Trial Courts
~Major Trial Courts
*District Court
*Superior Court
Federal Courts
-Appellate Court (Appeals)
~US Supreme Court
~US Circuit Courts of Appeal
-US District Courts
Trial Courts
-Civil
-Criminal
-Family
-Probate
~Where cases begin/originate
Trial Courts
-Adjudication
-Processing Cases to Final Resolution
~Civil
*Money Judgements/Fine
~Criminal
*Conviction/Acquittal
~Family
*Divorce/Custody Orders
~Probate
*Distribution of Estates
Appellate Courts
-Appeal
~Asking a higher court to review a lower court decision
-Appellate Jurisdiction
~Appeals only
*Majority of appeals are CIVIL, not criminal
The Criminal Court Process
-Preliminary Hearing
~Information
-Grand Jury
~Indictment
~Both are trying to see if there’s a Probable Cause
Plea Bargaining
-Guilty Plea = Waiver
~Giving up the 6th Amendment right of trial
*Right to appeal (no constitutional)
-Goals
~Reduce the seriousness of the charge
*“Charge Bargaining”
~Reduce the number of charges or counts
*“Count Bargaining”
~Reduce the sentence
~Avoid costs and risks of trial
~Quicker resolution for victims
-Issues
~Soft on crime/ not justice
~No appeal
~Coercion (police/DA)
~Mental health/ drug court issues
Arraignment
-Defendant enters a plea
~Guilty = conviction
~Not Guilty = trial
Trial
-The Exceptional Case
Pretrial Motions
-Motion for Suppression
~Using the exclusionary rule
-Motion for Discovery
~We think the other side has something we need
-Motion for Change of venue
~Changing the location (typically in a criminal matter)
-Motion for Dismissal
~You didn’t meet the Burden of Proof
-Motion
~Request for a court order
Trial
-6th Amendment
~Guarantees a speedy and public trial by an impartial jury
*“Justice delayed is justice denied.”
Trial by Jury
-Defendant’s Right to Jury or to Waive
~”Bench Trial”
*Trial by judge
Jury Selection
-Voir Dire (Speak the truth)
-They want the jurors to speak the truth
~Dased on psychology techniques to choose the juror
-Challenge for Cause
~Conflix of interest
~Legal/bias reason
~Judge decides
~Unlimited number of people
-Peremptory Challenge
~No reason required
~Limited number of these, roughly six times per side
*Both sides talk to the juror
*But prosecutors cannot challenge based solely on race or gender
Opening Statements
-First: State/Prosecution
-Second: Defense
~Does not have to
Presenting Evidence (Putting on the case)
-The State/ Prosecution’s Case-In-Chief
~State/Prosecution “Rest”
-The Defense Case
~Defense “Rest”
*Does not have to do anything
-State/Prosecution Rebuttal
~If the defense goes then they go again
*State Rests
Closing Arguments
-State/Prosecution
-Defense
-State/Prosecution Rebuttal
Charing the Jury
-Jury Deliberation Room
~Guilty
*Conviction
~Not Guilty
*Acquittal
~Hung Jury (non-unanimous)
*Dould Jeperdy does not apply to hung Jury
Dual Court System
-The state and federal court systems of the United States
State Court System
-Civil or criminal courts in which cases are decided through an adversarial process; typically including a court of last resort, an appellate court, trial court, and lower courts
Federal Court system
-The four-tiered system that includes the Supreme Court, circuit courts of appeal, district court, and magistrate court
Adversarial System
-A legal system wherein there is a contest between two opposing sides, with a judge (and possibly jury) sitting as an impartial arbiter, seeking truth
Police Making
-The act of creating laws or setting standards to govern the activities of government; the US Supreme Court, for example, has exchanged in policy making in several areas, such as affirmative action, voting, and freedom of communication and expression
Eighth Amendment
-In the Bill of Rights, it contains the protection against excessive bail and fines, as well as cruel and unusual punishment
Jurisdiction, Court
-The authority of a court to hear a particular type of case based on geography (city, state, or federal) and subject matter (criminal, civil, probate)
General Jurisdiction
-That these counties have the legal authority to decide all matters not specifically delegated by state law to the laser courts of limited jurisdiction
Intermediate Court of Appeals (IPA)
-A state court that stands between a trail court and a court of last resort; it typically has appellate jurisdiction only
Court of Last Resort
-The last court that may hear a case at the state or federal level
Causation
-A link between one’s act and the injurious act of crime, such as one tossing a match in a forest and igniting a deadly fire
District Courts
-Trial courts at the county, state, or federal level with general and original jursdiction
Circuit Courts
-Originally courts wherein judges traveled a circuit to hear appeals, not courts with several counties or districts in their jurisdiction; the federal court system contains 11 circuit courts of appeals (plus the District of Columbia and territories), which hear appeals from district courts
En Banc
-Type of “bench hearing”
-A majority vote, all judges in the circuit may sit together to decide a case or reconsider a panel’s decision
US Supreme Court
-The court of last resort in the United States, also the highest appellate court; it consists of nine justices who are appointed for life
Writ of Certiorari (Order)
-An order from a higher court directing lower court to send the record of a case for review
Rule of Four
-Four of the nine justices decide to review a case the court will hear the case
Standing
-A legal doctrine requiring that one must not be a party to a lawsuit unless he or she has a personal stake in its coutcome
Booking
-The clerical procedure that occurs after an arrestee is taken to jail. during which a record is made of his or her name, address, charge(s), arresting officers, and time and place of arrest
Initial Appearance
-A formal proceeding during which the accused is read his or her rights and informed of the charges and the amount of bail required to secure pretrial release
Bail
-Surety (e.g., cash or paper bonds) provided by a defendant to guarantee his or her return to court to answer to criminal charges
Prelimiting Hearing
-A stage in the criminal process conducted by a magistrate to determine whether a person charged with a crime should be held for trial based on probable cause; does not determine guilt or innocence
Grand Jury
-A body that hears evidence and determines probable cause regarding crimes and can return formal charges against suspect; use, size, and functions vary among the states
Nolo Contendere
-Is unique that allows a defendant to plead guilty for purposes of avoiding trial, but the plea cannot be used against him or her later in a civil case (because technically he has not admitted guilt)
Change Bargaining
-Offering to plead guilty to a lesser offense than one charged, thus hoping for a lighter sentence
Count Bargaining
-Pleading guilty to, say, three of the charged counts and having the remaining six counts thrown out
Arraignment
-A criminal court proceeding during which a formally charged defendant is informed of the charges and asked to enter a plea of guilty or not guilty
Plea negotiation (or bargaining)
-A preconviction process between the prosecutor and the accused in which a plea of guilty is given by the defendant, with certain specified considerations in return- for example, having several charges pr counts tossed out, and a plea by the prosecutor to the court for leniency or shorted sentence
Lesser Misdemeanor
~One that has a penalty of less than six months in jail
Summons
-To appear and form a jury pool
Voir Dire (“to speak the truth”)
-A smaller number of prospective jurors is selected for a process
Peremptory Challenges (usually set by statute)
-Which allow them to remove jurors without any reason or explanation
Pretrial motions/processes
-Any number of motions filed by prosecutors and defense attorneys prior to trial, for instance, to quash evidence, change venue, conduct discovery, challenge a search or seizure, raise doubt about expert witnesses, or exclude a defendant’s confession
Discovery
-A procedure wherein both the prosecution and the defense exchange and share information as to witnesses to be used, results of tests, recorded statements by defendants, or psychiatric reports, so that there are no major surprises at trial
Diversion Program
-A sentencing alternative that removes a case from the criminal justice system, typically to move a defendant into another treatment program or modality
Trial Process
-All of the steps in the adjudicatory process, from indictment or charge to conviction or acquittal
Swift Justice
-A term that is fairly well emblazoned in our collective psyche
Delay (trial)
-An attempt (usually by defense councle) to have a criminal trial continued until a later date
Speedy Trial Act of 1974
-Later amended, a law originally enacted to ensure compliance with the Sixth Amendment’s provision for a speedy trial by requiring that a federal case be brough to trial no more than 100 days following the arrest
Length of Delay
-A delay of a year or more from the date of arrest or inditement, whichever occurs first, was termed “presumptively prejudicial”
Reason for the delay
-The prosecution may not excessively delay the trial for its own advantages
-A trial may be delayed for good reason, such as to secure the presence of a key witness
Time and Manner in Which the Defendant has Asserted his Right
-If a defendant agrees to the delay whem it works to his own benefit, he cannot later claim that he has been unduly delayed
Degree of prejudice to the defendant that the delays has caused
-Delay can affect evidence and impair the defense
~Witnesses might die, move away, or their memories fade; records or evidence can be lost or destroyed
Opening Statements
-The prosecutor goes first and has the burden of proof followed by the defense (although in many jurisdictions, the defense can opt to defer altogether)
~The purpose of this step is to succinctly outline the facts they will try to prove during trial-and it is not a time to argue with the other side
Prosecution’s case
-The prosecution will present its side of the case, presenting and questioning its witnesses and admitting relevant evidence
-The defense may cross-examine these prosecution witnesses
~A “redirect” allows the prosecution to reexamine its witnesses
*Once the protection has finished presenting its evidence, it will rest its case
Motion to Dismiss
-As a formality, at this point during a criminal trial, the defense will often make a motion to dismiss all charges, arguing that the state has not proved its case and, that being so, there is no need for the defense to put on its case.
-The judge generally denies this request, opening the way for the defense case.
Defense’s Case
-The defense presents its main case through direct examination of its chosen witnesses
~The prosecution is then allowed to cross-examine the defense witnesses; during redirect, the defense may reexamine its witnesses
-The defendant cannot be compelled to testify against himself or herself but has the right to testify in his or her defense if so desired.
-The defense then rests
~ The defendant is presumed innocent until proven guilty, so the defense is not required to put on a case.
*If the defense does not have good evidence or bases for cross-examination of the state’s witnesses, the defense can simply rest, and the jury or judge will have to decide if the state has proven its case beyond a reasonable doubt
Prosecution rebuttal
-The prosection may offer evidence to refute the arguments made by the defense
Closing Arguments
-A time for both sides to review the evidence so that it is clear to the jury before they begin their deliberations
-The order of closing arguments varies by jurisdiction
~In some, the state always argues first, but in others, the defense does
-The prosecution will offer reasons why the evidence proves the defendant’s guilt and the defense will explain why the defendant should be acquitted
-THIS IS NOT THE TIME for the prosecutor to offer a personal opinion, make inflammatory or discriminatory remarks, or comment on the defendant’s failure to testify
~Such misconduct may result in a reversal of a conviction on appeal
Jury Instructions
-The judge’s instructions to the jury are important and, if improper, may later be grounds for a reversal and a new trial
~Also known as “charging the jury”
-The judge will explain the law that is applicable to that particular criminal case and the possible verdicts and will typically include general comments concerning the doubt, and that the jury may not draw inferences from the fact that the defendant did not testify in his or her behalf
Jury Deliberations and Verdict
-The jury will deliberate for as long as it takes to reach a verdict
-In most states, a unanimous agreement must be met for a verdict to be reached (the Constitution does not require earlier unanimous verdict)
-Once the jury has determined its verdict, either guilty or not guilty for each crime in question, the verdict will be read to the court
-Either side, or the judge, may “poll the jury,” asking all jurors individually if the verdict as read is theirs; if not unanimous, the jury may be returned its room to deliberate again, or be discharged
-If the jury acquits the defendant, the case is over
-The prosecutors cannot appeal an acquittal because of the Fifth Amendment protection against double jeopardy
-The Jury may, instead, convict the defendant of some charges while acquitting him of others
Posttrial Motions
-If the jury delivers a guilty verdict, the defense will usually ask the judge to override the jury’s decision and acquit the defendant or grant him or her a new trial.
~This motion is almost always denied
Sentencing
-If the defendant was convicted of the crime(s), sentencing will be determined by the judge immediately after the verdict is read or at a later court date
-In arriving at a sentence, the judge generally orders a presentence investigation report (PSI) by probation or court services personnel to look at the history of the person convicted, any extenuating circumstances, a review of his or her criminal record, and a review of the specific facts of the crime
-The person or agency preparing the PSI makes a recommendation to the court about the type and severity of the sentence
-The judge may, be limited by federal and state sentencing guidelines
~Some crimes carry a mandatory minimum sentencing requirement, while other sentences may be based largely on the discretion of the judge
Punishments
-After conviction, and upon receiving the PSI or using sentencing guidelines, the judge may opt for one of the following punishments
~Incareration
~Probation
~Fines
~Restitution
~Community Service
Appeal
-Potential grounds for appeal in a criminal case includes a legal error
~Improperly admitted evidence
~Improper jury instructions
~Jury misconduct
~Ineffective counsel
~Lack of sufficient evidence to support a guilty verdict
-If the error affected the outcome of the case, the appeal is granted
~The conviction is overturned
*In some cases is remanded back to the trial court, and a retrial is ordered (the prosecutor may choose to drop charges if facing a retrial without key evidence)
-If the appeal court finds that the error are considered harmless, and the appeal is denied
-For the first appeal, the US Supreme Court has said that if the person convicted is indigent, then free, appointed counsel must be provided
~The Court ruled later that, after losing the initial appeal, the convicted person is NOT entitled to free appointed counsel for any subsequent appeals
“Paper on Demand” (POD)
-Denoting an environment in which the routine use of paper no longer exists in general
Sentencing
Probation -> Prison -> Parole
-Probation
~The sentencing is out in the community
*It can be revoked
-Prison
-Parole
~Early release from prison
*Admit the crime and have to have remorse for the crime
Probation
-Alternative Sentence
-A privilege
~Not a right
-Subsystem of the courts/ juvenile justice system
~Not turned over to the correction systems
-Enforcement = threat of revocation
-Shock Probation (scared straight)
~Take them to maximum prison for a few days
Parole
-Early Release
~A privilege
*Not a right
-Corrections Department System/jurisdiction
-Enforcement = threat of revocation
Sentencing
-Retribution
~Eye for an eye
-Deterrence-General and Specific
~Send someone to prison will not repeat the action
~Targets the offender
-Incapacitation
~Three-strike rule
~Long sentences
-Rehabilitation
~Try to help people become a better citizen
-Proportionality-Fairness under the 8th Amendment
Sentencing
-Presentence Investigation (PSI)
~
-Sentencing Hearing
~Victims can testify at these
-Sentencing Guidelines
~Set by lawmakers
~Madatory minimums
Types of Sentencing
-Indeterminate
~15-20years-ish
-Determinate
~30 years with a possibility of parole
-Mandatory
~A set number of minimum years
*The legislator decides the minimum number of years
-Concurrent
~At the same time
~The longest sentence is the maximum time
-Consecutive
~A total of all the years added together for the crimes
Sentencing
-How long?
-Good Time Credits
~Behave themselves
*Based on schedules
-Earned credits
~Doing programs
*Might let you out earlier
The Death Penalty
-27 States + Federal Government authorize capital punishment
-5 states = 65% of all executions
~FL, MO, OK, VA, TX
-Secondary Methods
~Gas Chanbers
The Debate
-Pro Death Penalty
~Deterrence
~Retribution
*Eye for an eye
~Incapacitation
~Money
*Death row is extremely expensive due to appeals and solitary confinement
-Against
~Not a deterrent
~Government should not kill
~Discriminatory Sentences
~Easy way out
~Money
~Risk of executing innocents
Appeals
-CJ System Finality-Why Appeals?
~Righting Wrongs
~Consistency
-Asking a higher court to review a lower court decision
~Majority of appeals = civil
~80% of criminal convictions = affirmed
~Not looking at guilt or innocence
*Criminal case issues
**Evidence
**Plea Bargains
**Jury instruction
-Type of cases?
~Homicide + violent felonies = 50%
Possible Outcomes of Appeals
-Affirm
~Still convicted
-Reverse
~Wipped away the criminal charges
-Reverse and Remand
~Wipped the conviction and reconvict the person
*New Trial
*Plea Bargain
Appeals
-Miranda v. Arizona
~5th
-Gideon v. Wainwright
~6th
-Mapp v. Ohio
~4th
Supreme Court
-Rule of Four
~Four of the nine have to agree on a case to be heard
*Question of law that needs to be resolved
**Only 150 cases are heard a year
-Writ of certiorari
~”To be more fully informed”
*To send the record up from the lower court
Criminal Cases
-4th Amendment
~Exclusionary Rule
-Coerced Confession
-8th Amendment
~Leathal Injection
Courts
-Problems-Solving Courts
~Mental Health Courts
~Drug Courts
~Veterans Courts
-Prosecutorial Oversight
-Public Defender Funding
-Access to Justice
Punishment
-Penalties imposed fro committing criminal acts, to accomplish retribution, deterrence, incapacitation, and/or rehabilitation
Retribution
-Punishment that fits the crime, that is “equitable” for the offense
Deterrence
-The effect of punishment and other actions to deter people from committing crimes
General Deterrence
-The public experiences the effect because they can see what will befall them should they engage in similar behavior
Specific Deterrence
-Involves using punishment against specific offenders for their criminal acts to discourage them from committing such ats again in the future
Incapacitation
-Rendering someone as unable to act or move about, either through incarceration or be court order
Rehabilitation
-Attempts to reform an offender through vocational and educational programming, counseling, and so forth so that he or she is not a recidivist and does not return to crime and prison
Concurrent Sentence
-Means a person will serve all sentences at the same time, with each sentence running along the same timeline, along parallel tracks
Consecutively Sentence
-Each sentence will be served separately
~When one sentence is finished for the first crime, they immediately begin serving the sentence for the second crime, and so on
*To maximize the sentence length by “stacking” the sentences
Sentencing Guidelines
-An instrument developed by the federal government that uses a grid system to chart seriousness of the offense, criminal history, and so forth and thus allows the court to arrive at a more consistent sentence for everyone
Victim Impact Statements
-Information provided prior to sentencing by the victims of a crime (or, in cases of murder, the surviving family members) about the impact the crime had on their lives; allowed by the US Supreme Court
Capital Punishment
-A sentence of death, or carrying out same via execution of the offender
Exoneration
-To absolve someone of criminal blame, or find someone not guilty
Aggravating Circumstances
-Include use of a weapon, an especially heinous or cruel crime, a commission of murder for hire, or the offender’s being a peace officer engaged in official duties
Mitigating Circumstances
-Include little or no prior criminal history, the offender’s acting under duress or under the influence of mental illness or extreme emotional disturbance, or the offender’s being young
