Review 9-11 Flashcards
Effects on judicial system
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. We rely on it to get the truth. Most important part is cross examination of witnesses.
The Influence of Courts in Policy Making:
Determining what the law says and providing a public forum involve the courts in policy making.
Policy making can be defined as choosing among alternative choices of action.
Affect all: The policy decisions of the courts affect virtually all of us in our daily living.
Help of judicial branch required: Judicial branch must help interpret the law and deal with volatile social issues. As many of the Constitution’s limitations on government are couched in vague language.
Dual Courts System
Jurisdiction: A court’s legal authority to hear and decide a particular type of case in law (subject matter, i.e., state or federal law, criminal or civil, juvenile or adult, bankruptcy/patent/maritime), a case with a particular valuation limitation (either minimum or maximum dollar value), to people who meet certain citizenship requirements (domiciled within the state) or diversity of citizenship (litigants domiciled in different states), and further limited in geographic area (within a state or federal district).
Hear only cases within their jurisdiction and authority:
Jurisdiction is set forth in state and federal law, and it is typically based on geography (i.e., where the case is physically located) and subject matter (what the case is about: criminal, civil, juvenile, etc.).
Courts hear only cases that fall under their jurisdiction and authority; our courts are organized along state and federal lines and then further along subject matter lines.
At the lower end are the limited jurisdiction: state trial courts, handling traffic, misdemeanors, and juvenile matters, for example.
At the highest level is the U.S. Supreme Court: which hears a limited number of appeals on federal and constitutional legal issues.
State Courts
State Trial Courts:
Lowest level of state courts: Inferior courts or lower courts.
Various names: District, justice, justice of the peace, city, magistrate, or municipal courts, the lower courts decide a restricted range of cases.
Not a part of the state judiciary: As these are created and maintained by city or county governments.
Huge caseload: variety of cases. Cases can be divided into felony criminal cases, non-felony criminal cases, and civil cases.
Preliminary role in felony cases: Lower court jurisdiction includes the preliminary stages of felony cases. After an arrest, a judge in a trial court of limited jurisdiction will hold the initial appearance, appoint counsel for indigents, and conduct the preliminary hearing.
Later, the case will be transferred to a trial court of general jurisdiction for trial (or plea) and sentencing.
Major Trial Courts:
Each court has its own support staff consisting of a clerk of the court, a bailiff, and others.
Grouped into judicial districts or circuits: General jurisdiction means that these courts have the legal authority to decide all matters not specifically delegated by state law to the lower courts of limited jurisdiction.
Difference in rural areas and counties:
In rural areas, these districts or circuits encompass several adjoining counties, and the judges are true generalists who hear a variety of cases and literally ride the circuit.
Conversely, larger counties have only one circuit or district for the area, and the judges are often specialists assigned to hear only certain types of cases.
Common names: District, circuit, and superior.
In the criminal justice system, most serious criminal violations, including many drug-related offenses, are heard in these courts.
Heavy case loads, but most cases do not go to trial. Plea bargains are made, and these courts’ primary job is to sentence offenders who have plead guilty to some offense as a result of a plea bargain.
Hears serious criminal violations; not all go to trial: Including many drug-related offenses, are heard in these trial courts of general jurisdiction.
County district court: Many functions and programs: In addition to the basic court role of hearing trials and rendering dispositions.
Within the state trial court system, a number of specialty courts or problem- solving courts have become more common:
Such as drug, family, mental health, veterans, and domestic violence courts.
They are used to divert criminal defendants into treatment programs rather than jail or prison.
Appeals Courts:
Intermediate court of appeals: The first stop for an appeal in the state courts.
A state court that stands between a trial court and a court of last resort; it typically has appellate jurisdiction only.
The only states not having an ICA are sparsely populated with low volumes of appeals.
The structure of the ICAs varies. In most states, these bodies hear both civil and criminal appeals, and these courts typically use rotating three-judge panels.
The state ICAs’ workload is demanding:
ICAs engage primarily in error corrections; they review trials to make sure that the law was followed, and the overall standard is one of fairness. The ICAs represent the final stage of the process for most litigants.
Very few cases make it to the appellate court in the first place, and of those cases, only a small portion will be heard by the state’s court of last resort.
ICAs engage primarily in error corrections: They review trials to make sure that the law was followed and the overall standard is one of fairness.
State Supreme Courts:
Specific name and number of judges differ from state to state.
Entire court sits to decide each case.
Have a limited amount of original jurisdiction while disciplining lawyers and judges.
Policy-making role of state supreme courts more apparent than in deciding death penalty cases.
Ultimate review board for matters involving interpretation of state law.
Handles all cases in states without ICAs.
Handles the most challenging legal issues arising in that state.
Small portion heard by the U.S. Supreme Court: The court of last resort (the last court that may hear a case at the state or federal level) in the United States, also the highest appellate court; it consists of nine justices who are appointed for life.
Federal Courts
Federal Trial Courts:
District courts: Trial courts at the county, state, or federal level with general and original jurisdiction.
“Workhorses” of the federal judiciary: Nearly all civil or criminal cases heard in the federal courts are initiated at the district court level.
Number of district courts in the U.S.:
Congress created 94 U.S. district courts, 89 of which are located within the 50 states.
There is at least one district court in each state (some states have more, such as California, New York, and Texas, each of which has four).
Congress has created 678 district court judgeships for the 94 districts.
District judges nominated by the President, confirmed by the Senate for life: Unless removed for cause.
Federal trial courts of original jurisdiction: For all major violations of federal criminal law.
District court judges are assisted by an elaborate supporting cast:
Clerks, secretaries, law clerks, court reporters, probations officers, pretrial services officers, and U.S. marshals.
The larger districts also have a public defender.
There is one U.S. attorney, the federal prosecutor in each district at the district court level.
The work of district judges is significantly assisted by 352 bankruptcy judges, who are appointed for 14-year terms by the court of appeals in which the district is located.
U.S. Courts of Appeals:
Circuit courts: Originally courts wherein judges traveled a circuit to hear appeals, now 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.
Circuit courts of appeals: Refers to the 13 geographic areas or circuits where these courts are seated and over which they exercise jurisdiction.
Has a chief judge aided by several staff members: Each circuit has a chief judge (chosen by seniority or on a rotating basis) who has supervisory responsibilities. He is aided by:
A circuit executive assists the chief judge in administering the circuit.
The clerk’s office maintains the records.
Each judge is also allowed to hire three law clerks.
Hears appeals: From U.S. district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. Hear cases in 3 judge panels, but litigants can appeal a decision of a 3-judge panel to the entire circuit court, known as an en banc appeal. These en banc appeals are rare. Because the U.S. Supreme Court hears so few cases each year, the U.S. Circuit Courts of Appeal are often the final word on federal law in the United States.
Nomination of judges:
Judges are nominated by the president and confirmed by the Senate.
The number of judges in each circuit varies; from 6 in the First Circuit to 28 in the Ninth, depending on the volume and complexity of the caseload.
U.S. 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.
Judges and Advocacy:
Composed of nine justices: one chief justice and eight associate justices, nominated to their post by the president and confirmed by the Senate, and they serve for life.
Each new term of the Supreme Court begins, by statute, on the first Monday in October.
Procedure for application:
Applicants must submit an application form that requires applicants to have been admitted to practice in the highest court of their state for a period of at least 3 years, and they must appear to the Court to be of good moral and professional character.
Applicants must also swear or affirm to act “uprightly and according to law, and . . . support the Constitution of the United States.”
Conferences and Workload:
The Court divides its time into four separate but related activities:
Reading through petitions for review of cases that come annually to the Court.
Oral arguments.
Private discussions of how each justice will vote on the cases they have just heard.
Work on writing their opinions.
The Pretrial Process
Booking: A clerical procedure for when an arrestee is taken to jail and 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, informed of the charges, and given the amount of bail required to secure pretrial release. Occurs within a reasonable time after arrest.
Bail: Surety (e.g., cash or paper bond) provided by a defendant to guarantee his or her return to court to answer to criminal charges. Also known as “pretrial release,” allowing defendants to remain out of jail while awaiting trial and affording them time to help with their defense and to maintain ties with family and their job. Not a guaranteed right.
Preliminary 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. Allows a judge (no jury is present) to decide whether probable cause is sufficient against the person charged to proceed to trial.
Grand jury:
A body that hears evidence and determines probable cause regarding crimes and can return formal charges against suspects; use, size, and functions vary among the states.
Primary function: To review the evidence presented by the prosecutor.
To determine whether there is probable cause to return an indictment.
Only about half of all states use grand juries routinely to bring formal charges: Rather than relying solely on a prosecutor’s decision (or after a preliminary hearing).
Indictment required: The grand jury must find probable cause to charge the defendant with a crime. If that happens, the grand jury issues an “indictment,” a formal charge and trial (or plea bargaining) will ensue. Without an indictment, the state cannot move forward with criminal charges against a defendant.
The Fifth Amendment to the Constitution requires a grand jury indictment for all federal criminal charges.
Rules for witnesses and grand jury proceeding:
Witness cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer. A few states do allow a lawyer to accompany the witness.
Witness refusing to appear before the grand jury can be held in contempt of the court.
Double jeopardy does not apply to a grand jury proceeding. If the prosecutor fails to return an indictment, he may impanel a second grand jury and try again.
No judge is present in the grand jury room when testimony is being taken.
Arraignment:
After being formally charged, accused is asked to enter a formal plea.
Plea Negotiation:
Defendants enter a plea in exchange for concessions: When defendants enter a “guilty” or “no contest” plea, they often do so through a plea negotiation, or plea bargaining. In exchange for the defendant’s plea of guilty, the government is willing to give the defendant certain concessions.
Several forms:
The accused can engage in charge bargaining (offering to plead guilty to a lesser offense than the 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), or
Negotiating how he or she will serve an imposed sentence (e.g., two 5-year terms to be served concurrently, as opposed to consecutively).
Benefits of plea bargaining:
It eases the burden on witnesses and prospective jurors.
It can reduce the overcrowding of jails.
It allow the prosecutor and the defense to arrive at some middle ground of what experience has shown to be “justice,” without the defense running the risk of heavy punishment for the defendant, and the government not having to devote many days to trial with the risk of the defendant’s being acquitted.
Jury Trials:
Many people view the jury as the most sacred aspect of our criminal justice system because it is where common citizens determine the truth and assess punishment.
Availing or waiving the right to a jury trial: Not all criminal defendants are guaranteed a right to trial by jury; defendant may waive it. If charged with a lesser misdemeanor, one that has a penalty of less than six months in jail. Also, the defendant may waive the right to a jury trial and be tried by a judge alone (known as a bench trial).
The method of selecting citizen peers: To hear the evidence is important. Discuss process and methods – Prosecution and defense question potential jurors (voir dire), preemptory challenges (number set by statute), challenges for cause, unbiased, open mind on guilt or innocence, fair and unbiased peers from community. In racially sensitive cases, cannot be racial biased or motivated.
Numbers of jurors and alternates for a criminal trial: Generally, 12 jurors and 2 alternates are selected for a criminal trial, but that number is not required by the Constitution.
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 doubts about expert witnesses, or exclude a defendant’s confession.
Inclusions in defense motions: Defense motions include requests to suppress evidence, to reduce bail, to conduct discovery, to change venue, and to delay trial (“continuance”).
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.
Has become quite controversial in recent years: With prosecutors often being accused of withholding evidence that should have been provided to the defense, to the point that many jurisdictions have individuals, typically attorneys, skilled in the laws of evidence, serving as “discovery masters” to ensure fair exchange of information by both sides.
What is to be exchanged is not always clear-cut: The U.S. Supreme Court has required the prosecution to disclose only evidence that is both material and exculpatory, this has become a confusing area of law and formal/informal policy, with some states adopting conservative, others liberal, and still others “middle ground” rules of discovery.
Diversion Programs/Problem-solving Courts:
Spawned due to various reasons: The increasing number of criminal cases in our already-overburdened courts, together with the high recidivism (reoffending) rate, has spawned a number of alternative courts and diversion programs around the country, including drug courts, mental health courts, veterans courts, and even some courts dedicated to offenders with gambling addictions.
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.
Specialized court professionals: These “problem- solving” courts allow eligible defendants to move their cases to a court where specialized court professionals can better address the unique features of these defendants and their cases.
Promising long-term effects: The long-term effects of such programs appear to be promising as well, with positive effects (non-recidivism) lasting from 3 years to 14 years in some cases.
The Trial Process
Right to speedy trial:
Trial process: All of the steps in the adjudicatory process, from indictment or charge to conviction or acquittal.
Timely justice necessary: Bringing offenders to justice in a timely manner is felt to be essential to sending a meaningful message to offenders, to convey a message of deterrence to the general public, to maintain public confidence in the judicial process, and generally to help the criminal justice system better do its job. The consequences of delay to society are potentially severe.
Speedy Trial Act of 1974: Federal prosecutors have a total of 100 days from the time of arrest until trial. This act mandates a 30-day limit from the point of arrest to indictment and 70 days from indictment to trial.
State-level speedy trial laws are often not followed in practice: No “teeth” in state statutes concerning time limits.
Delay (trial): An attempt (usually by defense counsel) to have a criminal trial continued until a later date.
Test by the U.S. Supreme Court determine whether the defendant’s right to a speedy trial was violated:
Length of delay;
Reason for the delay;
Time and manner in which the defendant has asserted his right; and
Degree of prejudice to the defendant that the delay has caused.
What strategic reason might a defendant have to delay his trial?
Old witness may die;
Close to an election and tough prosecutor may not be reelected;
Tough judge may be ready to retire and a more defense friendly judge may be appointed;
Heat of emotion in the community in response to the crime be cool with time; and,
Prosecution evidence may become stale or seemingly out of date, witnesses’ memories may fade with time, or witnesses may mellow their testimony over time.
Pattern of the trial process:
Opening statements: P goes first followed by D. Purpose is to outline the case against or for the accused. Facts that will be proved or defenses that will be made.
Prosecution’s case;
Motion to dismiss;
Defense’s case;
Prosecution rebuttal;
Closing arguments: Both sides review the evidence, make arguments about why the evidence proves the guilt or innocence of the defendant.
Jury instructions: Are almost always statutory, quoting the law, or from specially written books. Frequently the subject of debate and argument as to the wording and whether the instruction is appropriate between P, D, and the Judge. If wrong or mistaken, can be reason for reversal on appeal. Can be just instructions, or can include an interrogatory verdict form that the jury must complete, and their answers must be consistent with verdict they rendered.
Jury deliberations and verdict: As a rule, a jury verdict in a criminal case must be unanimous. Verdict is read in open court. Defense or Prosecution can “poll the jury” to ensure the verdict read is actually the way the jury voted. Prosecution cannot appeal an acquittal, but the defense can appeal a conviction. Jury can convict only on some counts an acquit on other counts.
Post-trial motions (Sentencing, Punishments): Judgment not withstanding the jury’s verdict.
Sentencing: Judge usually orders a presentencing report if he has discretion in sentencing, or simply follow the Federal or State’s sentencing guidelines. Sentences include Incarceration, Probation, Fines, Restitution, and Community Service.
Appeal: Defense must prove reversible error as opposed to harmless error. (Improperly admitted evidence, improper jury instructions, jury misconduct, ineffective assistance of defense counsel, procedural errors that rise to the level of Constitutional violations, prosecutorial misconduct, judicial misconduct, lack of sufficient evidence to support the judgment, etc.). If the convicted person is indigent, then the state must provide appellate counsel paid by the state for the first appeal only.
Selecting judges
The federal method of selecting judges in simpler in process than the basic five methods of selecting judges in state court. All federal judges are nominated by the president and are confirmed by the Senate.
How state and local court judges assume the bench matters and differs from state to state.
Methods of judicial selection are important for at least four reasons:
The type of judicial selection system affects judges’ experience level;
It determines the ability of qualified, but less politically connected, individuals to serve;
It affects the gender and racial diversity of the judiciary; and
It affects the public’s perception of judicial impartiality and independence.
No two states in the U.S. use the same selection method:
Minimum five judicial selection methods are used across the U.S.
In many states, more than one method of selection is used for judges at different levels of the court system and even among judges serving at the same level.
Even when the same method is used, there are still variations in how the process works in practice.
Methods of selection:
1. Commission-based appointment: Also known as merit selection or the Missouri Plan. A means of selecting judges whereby names of interested candidates are considered by a committee and recommendations are then made to the governor, who then makes the appointment. In most of these type systems, the judge then runs in periodic non-partisan retention elections – usually unopposed.
2. Partisan election: When voters cast ballots for judicial positions. Candidates run with the official endorsement of a political party. The voters select the judge my casting their ballots as they would for any elected official. The judge then runs in periodic partisan elections and is usually opposed by one or more candidates.
3. Nonpartisan election: Generally, the same as a partisan election but a judicial candidate’s party affiliation is not designated on the ballot.
4. Gubernatorial appointment: When a judge is appointed by the governor, without the use of a nominating commission. Many states required approval of one of the legislative bodies in the state. Similar to the federal process.
5. Legislative appointment/election: A process by which judges are nominated and appointed by legislative vote only.
High amount of money spent on judge’s selection, especially in partisan election states. Elections for State Supreme Court positions are becoming battle grounds for political interest groups and “Dark Money” (money from out of state).
Judge benefits and challenges
Life terms for federal positions and in some states. High degree of respect and prestige. Primary decision makers, but accept recommendations.
Can be sanctioned if they deviate from consensus of the courtroom work group. Can be removed from the bench for misconduct.
Challenges:
Mastering the law;
Administering the court and docket;
Coping with psychological discomfort;
Loneliness; and
Sentencing criminals.
Judge characteristics
Judges should treat each case and all parties with absolute impartiality and dignity while providing leadership for court operations.
Defining the art and craft of judging:
Judges are keenly aware that they occupy a special place in a democratic society. They exercise their power in the most undemocratic of institutions with great restraint.
They are aware of the necessity for intellectual humility, an awareness that what we think we know might well be incorrect.
They do not allow the law to become their entire life; they get out of the courtroom, mingle with the public, and remain knowledgeable of current events.
Other writers believe that judges should remember that the robe does not confer omniscience or omnipotence.
Judicial Misconduct: Inappropriate behavior by a judge.
Reasons:
Poor treatment of others due to medication;
Some stay on bench too long; and
Judicial arrogance.
Anonymous survey to correct it.
Attorneys
Prosecuting attorney (gatekeeper): One who brings prosecutions, representing the people of the jurisdiction.
Authority to make various decisions at their sole discretion, which affect criminal defendants and the criminal justice system in general:
The decision to charge;
Type of charge(s);
Whether to recommend granting or denying bail;
Plea agreements, whether to entertain such agreements and, if so, the terms; and
Sentencing recommendations.
Prosecutors represent the people, the victims in particular, and investigate crimes – often they are called out in the field.
Role after preliminary investigation by police:
Determine whether there is sufficient evidence to bring charges;
Can scold officers who fail to do their work properly and quash the arrest report; and
Interacts with the person suspected of the crime, the victim, and witnesses.
Factors determining how they handle cases:
For prosecutors, the overarching question is, “Can I prove that a defendant committed a particular criminal act beyond a reasonable doubt?” If so, the prosecutor’s office files charges and handles the case through pretrial negotiations (if any) and ultimately takes the case to trial.
Other determining factors concerning how to handle a case are as follows:
The type of crime charged (personal or property crime);
The prior criminal record of the person accused;
The number of counts in the complaint (the more counts there are, the stiffer the sentence sought);
Whether there are aggravating or mitigating circumstances in the case;
The victim’s attitude, what he or she wants done with the case (this is particularly important in cases of violent crimes).
“Civil immunity”: Defendants cannot sue prosecutors for civil damages for how they handled a case.
Some scholars and observers believe prosecutorial immunity goes too far and unfairly insulates the most powerful player in the criminal justice system.
Defense Attorney
Defense attorney: One whose responsibility is to see that the rights of the accused are upheld prior to, during, and after trial; the Sixth Amendment provides for “effective” assistance of counsel, among other constitutionally enumerated rights that defense attorneys must see are upheld.
Duties and Strategies:
Defense attorneys can help ensure that the state does not commit innocent people to jail or prison.
Defendants have the right to counsel during all “critical stages” of the proceedings, those in which rights could be lost, e.g., interrogation, line-ups, jury selection, arraignment, trial, sentencing, and first appeal; and not during initial appearance.
The burden of proving ineffective assistance of counsel is high and is on the defendant to show that “a reasonable probability” exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Defendants are not entitled to “perfect” counsel but are entitled to effective counsel.
“Ineffective” counsel or Strickland test: The attorney was deficient in his or her performance, and in being so, the resulting prejudice to the defendant was so serious as to bring the outcome of the proceeding into question. For example: failure to investigate or introduce evidence of a valid alibi defense, failure to cross examination prosecutorial witnesses when that is proper.
When someone is charged with a crime, his or her defense lawyer, either hired or court-appointed, should do the following:
Explain the offense the accused is charged with, including the possible punishments and probation options.
Advise the accused of his or her rights, ensure those rights are upheld, and inform the accused of what to expect during the different stages of the criminal process.
Investigate the facts of the case.
Explain what is likely to happen if the case goes to trial.
If beneficial for the accused, attempt to negotiate a plea bargain with the prosecutor – reduced charges, shorter sentences, concurrent sentences as opposed to consecutive sentences, probation, etc.
If the case goes to trial, cross-examine government witnesses, object to improper questions and evidence, and present applicable legal defenses.
Indigent Services: Three systems for providing legal representation to indigent persons in criminal prosecutions:
The public defender system: The public defender is an attorney whose full-time job is to represent indigent defendants; performs many of the duties of prosecutors.
The assigned counsel system: Uses private attorneys appointed on an as-needed basis by the court; primary problem is that the attorney may have little or no experience handling the criminal matter at hand.
Problem: Little experience, limited knowledge.
The contract system: One whereby an attorney, a law firm, or a nonprofit organization contracts for a certain dollar amount, often after engaging in competitive bidding with a unit of government to represent its indigent defendants.
Advantages of this system can include reduced and predictable costs, streamlining of the counsel appointment process, and greater expertise of the attorneys.
A major disadvantage is that obtaining legal counsel from the “lowest bidder” may result in inadequate or ineffective legal services which may, of course, interfere with the defendant’s Sixth Amendment right to effective counsel and be the basis for appealing a conviction.
Courtroom work group
Courtroom work group: The criminal justice professionals who work together to move cases through the court system.
Six key courtroom work group participants:
Judge;
Prosecutor:
Defense attorney;
The court reporter: Attends legal proceedings, including trials and depositions in order to record what is said and create transcripts of the proceedings.
The clerk: Organizes and catalogs all of the paperwork generated during a trial, including all exhibits introduced into evidence, manages the jury subpoena and selection processes, and administers oaths to witnesses and jurors; and
The bailiff: A law enforcement officer who is responsible for maintaining order and safety in the courtroom and the judge’s chambers; assist with the movement of defendants and jury members in and out of the courtroom and remove any persons ordered out of the courtroom by the judge.
Defenses
Defense: The response by a defendant to a criminal charge, to include denial of the criminal allegations in an attempt to negate or overcome the charges. You arrested and charged the wrong person. I was there, but I didn’t commit the crime. Or to eliminate the required mens rea required to commit the crime.
Affirmative defenses: The response to a criminal charge in which the defendant admits to committing the act charged but argues that for some mitigating reason he or she should not be held criminally responsible under the law.
Criminal defendants can defend their actions by asserting affirmative defenses.
Justification Defenses: When using these, defendants argue they were justified in acting, i.e., self defense, castle doctrine, stand your ground doctrine, etc.
Self-defense:
A justification defense rooted in legal doctrine that permits the use of force against others who pose a threat to one’s person or interests.
Under modern laws, one may use force, even deadly force, without first “retreating to the wall” against another person if he or she reasonably believes that an attack against him or her is imminent, but defensive actions must be proportionate to the threatened harm and not unreasonable for the circumstances.
Necessity:
If a criminal act is committed in the event of an emergency, and if the harm avoided outweighs the harm committed by the defendant, then a person might escape criminal liability by employing the necessity defense. For example, I broke into the house to escape an on coming storm, I was speeding because my wife was in labor, I destroyed property to save a child in a burning house, etc.
However, the necessity defense has not been successfully used by every defendant who has committed a crime with the intent to avoid a seemingly greater harm.
Duress:
It involves defendants’ claims that they committed the act only because they were not acting of their own free will. Husband who works in a bank takes money because wife being held at gun point and he must pay the man, or his wife will be killed – not likely to succeed. Taxi cab driver forced to speed because fleeing suspect holds him at gun point.
To successfully use the duress defense, a jury must conclude the following:
The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
The defendant committed the act to avoid the threatened harm.
Excuse Defenses:
Age;
Entrapment;
Intoxication;
Double Jeopardy;
Mental Illness/Insanity.
4 goals of punishment
- Retribution: Punishment that fits the crime, that is “equitable” for the offense. A “payment” for a wrong creates a legal and moral debt that the offender is expected to “pay.” Society believes that justice demands it.
- Deterrence: The effect of punishments and other actions to deter people from committing crimes. Two parts: General and Specific.
- Incapacitation: Rendering someone as unable to act or move about, either through incarceration or by court order.
- Rehabilitation: Attempts to reform an offender through vocational and educational programming, counselling, and so forth, so that he or she is not a recidivist and does not return to crime and prison.
In order to be accepted by society as justice, sentencing and punishment must serve one of these goals.
Factors Influencing Punishment
- Issues concerning financial and societal benefit: On average it costs about $35,000 per year to house an inmate in prison, but costs vary widely by jurisdiction. Regarding the cost-benefit effect of prisons, some researchers argue that prisons should be used to greater advantage, believing it is at least twice as costly to let a prisoner be loose in society than it is to lock him or her up.
- Victims making wishes known early.
- Victim impact statements.
- Aggravating or mitigating circumstances.
- Prosecutors can influence decisions by: agreeing to engage in plea negotiation in terms of the number of charges filed,
the maximum penalty the judge may impose,
and explaining to the sentencing judge that the offender was particularly cruel or was very cooperative with the police and/or remorseful about the crime. In many states, prosecutors can also make a specific sentencing recommendation to the court that has been agreed upon with the defense. - The Eighth Amendment and the Thirteenth Amendment: cruel punishment and right against involuntary servitude.
- The seriousness of the offense: the most important factor in determining the sentencing received for an offense.
- The defendant’s prior criminal record: the existence of a lengthy criminal record, particularly a record of violence, or even habitual crimes against property can weigh heavily in terms of sentencing and punishment.
- Habitual offender laws in many states: these are related to and often viewed as identical to three-strikes laws. These laws vary widely from state to state but typically apply only to felonies and require third-time felons to serve a mandatory 25 years to life.
