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Chapter 11: Determination of Guilt: Plea Bargaining and Trials: 11-1 The Courtroom: How It Functions Book Title: The American System of Criminal Justice © 2019 Cengage Learning, Cengage Learning

11-1 The Courtroom: How It Functions Criminal cases follow similar rules and processes throughout the nation. However, courts differ in the precise ways they apply those rules and procedures. A classic study of criminal courts in nine communities in three states showed that similar laws and procedures can produce different results in the treatment of defendants (Eisenstein, Flemming, and Nardulli, 1988). Some courts sentence offenders to longer terms than do others (J. Wu and Spohn, 2010). In some places, court delays and tough bail policies keep many accused people in jail awaiting trial, whereas in other places defendants are more likely to be released before trial or have their cases resolved quickly. Guilty pleas may make up 90 percent of dispositions in some communities but only 60 percent in others. Such differences can appear even within different courthouses in the same city. How, then, can we explain such differences?

Social scientists are aware that the culture of a community greatly influences how its members behave. The definition of culture includes shared beliefs about proper behavior. These beliefs can span entire nations or pertain to smaller communities, including corporations, churches, or neighborhoods. In any community, large or small, the culture can exert a strong effect on people’s decisions and behavior.

Researchers have identified a local legal culture (Norms, shared by members of a court community, which center on how cases should be handled and how a participant should behave in the judicial process.) —values and norms shared by members of a particular court community (judges, attorneys, clerks, bailiffs, and others)—about how cases should be handled and the way court officials should behave (Church, 1985). The local legal culture influences court operations in three ways:

1. Norms (shared values and expectations) help participants distinguish between our court and other courts. Often a judge or prosecutor will proudly describe how we do the job differently and better than officials in a nearby county or city.

2. Norms tell members of a court community how they should treat one another. For example, one court may see mounting a strong adversarial defense as not in keeping with its norms, but another court may expect that sort of defense.

3. Norms describe how cases should be processed. The best example of such a norm is the going rate (Local court officials’ shared view of the appropriate sentence for the offense, based on the defendant’s prior record and other case characteristics.) , the local view of the proper sentence based on the defendant’s prior record and other factors. The local legal culture also includes attitudes on such issues as whether a

judge should take part in plea negotiations, when continuances (An adjournment of a scheduled case until a later date.) —lawyers’ requests for delays in court proceedings —should be granted, and which defendants qualify for a public defender.

Differences among local legal cultures help explain why court decisions often differ even though the formal rules of criminal procedure are basically the same (Currul-Dykeman, 2014). For example, although judges play a key role in sentencing, the “going rate” concept shows us that sentences also result from shared understandings among the prosecutor, defense attorney, and judge. In one court, shared understandings may mean a court imposes probation on a first-time thief; in other courts, different shared values may send first offenders to jail or prison for the same offense.

Checkpoint

1. How does the local legal culture affect criminal cases?

Stop and Analyze: There are competing viewpoints about differences in case outcomes in different courts. On the one hand, different outcomes collide with notions of “equal justice.” On the other hand, different outcomes may reflect the values of the individual communities in which they arise and therefore may be, in some sense, democratic and embody the wishes of the local citizens. Which perspective seems most appropriate to you? List two reasons for your conclusion.

11-1a The Courtroom Workgroup

Television dramas present a particular image of the American courtroom. In these shows, prosecutors and defense attorneys lock horns in verbal combat, each side trying to persuade a judge or jury to either convict or acquit the defendant. However, this image of adversarial proceedings does not reflect the actual scene in most American courtrooms. A more realistic portrayal would stress the interactions among the actors, who are guided by the norms and expectations of the local legal culture. Many of these interactions take the form of calm cooperation among the prosecutor, defense attorney, and judge, rather than the battle of adversaries portrayed in fictional accounts (Haynes, Ruback, and Cusick, 2010).

Decisions in criminal cases rely on how the participants interact with each other. We can best understand how criminal justice officials and staff function when we view them as workgroups (A collection of individuals who interact in the workplace on a continuing basis, share goals, develop norms regarding how activities should be carried out, and eventually establish a network of roles that differentiates the group from others and that facilitates cooperation.) , or groups of people who interact with each other, share certain goals and values, and form relationships that facilitate cooperation. The better the judge, prosecutor, defense attorney, and courtroom staff can function as a workgroup, the more smoothly they can dispose of cases. The workgroup concept is especially important in analyzing urban courts, which have many courtrooms; large numbers of lawyers, judges, and other court personnel; and heavy caseloads.

In light of the factors that define the workgroup, we can expect differences among workgroups from courtroom to courtroom, depending on the strength of these factors in each setting. For example, a rotation system that moves judges between courtrooms in a large courthouse may limit the development of workgroup norms and roles. Although the same prosecutors and defense attorneys may be present every day, the arrival of a new judge every week or month will require them to learn and adapt to new ideas about how cases should be negotiated or tried. When shared norms cannot develop, cases tend to proceed in a relatively formal manner. The actors in such a courtroom have fewer chances to follow agreed-on routines than does a workgroup with a well-developed pattern of interactions.

By contrast, when there are shared expectations and consistent relationships, the business of the courtroom proceeds in a regular but informal manner, with many shared understandings among members easing much of the work (Metcalfe, 2016; Worden, 1995). Through cooperation, each member can achieve his or her goals as well as those of the group. The prosecutor wants to gain quick convictions, the defense attorney wants fair and prompt resolution of the defendant’s case, and the judge wants cooperative agreements on

guilt and sentencing. All of these actors want efficient processing of the steady flow of cases that burden their working lives. Through cooperative decision making, the courtroom workgroup can resist outside efforts to change case processing and sentencing through new laws and policies and thereby retain control of case outcomes (Gebo, Stracuzzi, and Hurst, 2006; Harris and Jesilow, 2000).

Each actor in the courtroom workgroup has a specific role with unique duties and responsibilities. If a lawyer moves from the public defender’s office to the prosecutor’s office and later to a judgeship, each new position calls for a different role in the workgroup because each represents a different sponsoring organization (Metcalfe, 2016; Eisenstein and Jacob, 1977). One organization, loosely called the court, sends judges; the prosecuting attorney’s office sends assistant prosecutors; the public defender’s office sends counsel for indigents. In addition, other actors who work in the courtroom contribute to the workgroup’s effectiveness. To determine an appropriate plea agreement and sentence, for example, members of the workgroup rely on the probation officer to provide accurate information in the presentence report about the defendant’s prior convictions and family history.

Figure 11.1 shows the elements of the courtroom workgroup and the influences that bear on decision making. Note that the workgroup operates in an environment in which decision making is influenced by the local legal culture; recruitment and selection processes; the nature of the cases; and the socioeconomic, political, and legal structures of the broader community.

Figure 11.1

Model of Criminal Court Decision Making

This model ties together the elements of the courtroom workgroup, sponsoring organizations, and local legal culture. Note the effects on decision making. Should any other factors be taken into account?

Source: Adapted from Peter Nardulli, James Eisenstein, and Roy Flemming, Tenor of Justice: Criminal Courts and the Guilty Plea Process (Urbana: University of Illinois Press, 1988). Copyright © 1988 by the Board of Trustees of the University of Illinois. Reprinted by permission of the authors.

The crime victim is the missing actor in the courtroom workgroup’s processes that produce plea bargains. The workgroup members are interacting together on numerous cases, but each individual victim is only involved in one case. Many victims’ rights advocates would like to see victims consulted by the prosecutor as the courtroom workgroup’s interactions occur. Some observers believe that consulting with the victims would give the workgroup members more information and enhance the victims’ satisfaction with the justice system (M. M. O’Hear, 2008). However, the interactions of the workgroup place an emphasis on shared understandings and efficiency—elements that could diminish through slowing their processes in order to consult with an outsider in each individual case (Metcalfe, 2016).

Judges lead the courtroom team. They ensure that everyone follows procedures correctly. Even though prosecutors and defense attorneys make the key decisions, the judge must approve them. Judges are responsible for coordinating the processing of cases (N. King and Wright, 2016). Even so, each judge can perform this role somewhat differently. Judges who run a loose administrative ship see themselves as somewhat above the battle. They give other members of the team a great deal of freedom in carrying out their duties and will usually approve group decisions, especially when the members of the group have shared beliefs about the court’s goals and the community’s values. Judges who exert tighter control over the process play a more active role. They anticipate problems; provide cues for other actors; and threaten, cajole, and move the group toward efficient achievement of its goals. Such judges command respect and participate fully in the ongoing courtroom drama.

Even in the most adversarial cases, courtroom participants form a workgroup that requires constant interaction, cooperation, and negotiation. Do workgroups help or

hinder the attainment of justice?

AP Images/Grace Beahm

Because of their position in the justice system, judges can define the level of their involvement in the processing of criminal cases. How they define their role strongly affects interpersonal relations in the courtroom and the way the group performs its task, as measured by the way it disposes of cases (N. King and Wright, 2016). Judges’ actions can, for example, pressure defense attorneys to encourage their clients to plead guilty instead of insisting on a trial (D. Lynch, 1999). Whether the judge actively participates in courtroom interactions or supervises from a distance will help define the speed, efficiency, and degree of cooperation involved in disposing cases.

The behavior of defendants greatly affects how they are treated. They are expected to act remorseful, repentant, silent, and submissive. When the defendant admits guilt in public and states that he or she is entering a guilty plea voluntarily, acceptance of the plea can be followed by a brief lecture from the judge about the seriousness of the crime or the harm the defendant has caused the victim as well as his or her own family. The judge can give a break to a defendant for having cooperated. A defendant who pleads not guilty or whose behavior is inappropriate in other ways may receive a more severe sentence (S. Bushway, Redlich, and Norris, 2014).

Checkpoint

2. How does a courtroom workgroup form and operate?

Stop and Analyze: Should the fates of defendants be shaped by the relationships between judges and attorneys and by the defendant’s apologetic statements and appearance of remorse? Is there a way to enforce the same sentence for all offenders who committed the same crime? What if the courts abolished individualized sentences as part of plea bargaining and instead imposed uniform mandatory sentences? Write a statement either supporting or refuting the foregoing suggestion. Write a second statement describing how such a change would affect the criminal justice system.

11-1b The Impact of Courtroom Workgroups

The classic research of James Eisenstein and Herbert Jacob (1977) on the felony disposition process in Baltimore, Chicago, and Detroit offers important insights into the workgroup’s impact on decisions in felony cases. The researchers found that although the same type of felony case was handled differently in each city, the outcomes of the dispositions were remarkably similar. Differences did not stem from the law, rules of procedure, or crime rate. Instead, they emerged from the structure of the courtroom workgroups, the influence of the sponsoring organizations, and sociopolitical factors.

What impact did the courtroom workgroups have on pretrial processes? Eisenstein and Jacob found that the stable courtroom workgroups in Chicago had informal procedures for screening cases. Because of the groups’ close links to the trial courtrooms, they felt pressure to screen out many cases and thus spare the resources of the judges and the courts. This led to a very high dismissal rate. In Detroit, also a city with stable workgroups, the prosecutors had discretion to screen cases before they reached the courtroom; hence most of the defendants who appeared at preliminary hearings were sent to trial. Baltimore had less stable workgroups, in part because members were rotated, and sponsoring organizations did not closely supervise assistant prosecutors and defense attorneys. The unstable workgroups lacked all three workgroup criteria: close working relationships, shared values, and reasons to cooperate. As a result, there were fewer guilty pleas, and most defendants were sent on to the grand jury and afterward to the trial courts.

The disposition of felony cases results from the interaction of members of the courtroom workgroup (Metcalfe, 2016). The decisions made by each member are influenced by the policies of their sponsoring organizations. These interactions and policies may vary from courthouse to courthouse. The stability of workgroup interactions can be upset by changes such as a new docket system or adjustments in the policies and practices of sponsoring organizations.

Checkpoint

3. Why are similar cases treated differently in different cities?

Stop and Analyze: In your view, which actor appears to be most influential in the courtroom workgroup? Explain your conclusion in a brief statement.

Check-It

1. Local court officials’ shared view of the appropriate sentence for an offense based on the defendant’s prior record and other case characteristics is called the .

a. sentencing guideline

b. going rate

c. time charge

d. expected bid

2. How criminal justice officials and staff function is best understood when they are viewed as , or people who interact with each other, share certain goals and values, and form relationships that facilitate cooperation.

a. clusters

b. coworkers

c. teams

d. workgroups

11-2 Plea Bargaining For the vast majority of cases, plea bargaining—also known as negotiating a settlement, copping a plea, or copping out—is the most important step in the criminal justice process. Few cases go to trial; instead, a negotiated guilty plea arrived at through the interactions of prosecutors, defense lawyers, and judges determines what will happen to most defendants.

Table 11.1 shows the role of plea bargaining in case dispositions in different jurisdictions. Although the percentage of dispositions based on pleas varies from place to place, it is clear that trials are relatively rare events. The differences in percentages also indicate that prosecutors’ screening processes vary by jurisdiction. Some prosecutors screen out and dismiss all weak cases prior to charging defendants, whereas others wait until after charges have been filed to dismiss more cases or send defendants into diversion programs. The nature of the exchanges varies with each plea agreement, depending on the specific charges and whether the prosecutor expects a defendant to testify against other defendants.

Table 11.1

Plea Bargaining and Felony Case Dispositions

75 Most Populous Counties Nationwide (2009)

Alaska Statewide (2016)

Burlington County, New Jersey (2015)

Ohio Statewide (2015)

Disposition by Plea 64% 67.6% 79% 82%

Disposition at Trial 3% 2.6% 2% 2.5%

Dismissal/Diversion/Other 33% 29.8% 19% 15.5%

Source: “Alaska Court System: Annual Statistical Report 2016” (2017); “Burlington County (NJ)

Prosecutor’s Office 2015 Annual Report” (2016); B. Reaves, “Felony Defendants in Large Urban

Counties, 2009,” Bureau of Justice Statistics Bulletin (December 2013); Ohio Courts Statistical Report

2015 (2016).

Forty years ago, plea bargaining was not discussed or even acknowledged publicly; it was the criminal justice system’s “little secret.” Some observers felt that plea bargaining did not accord with American values of fairness. Doubts existed about whether it was constitutional, and it clashed with the image of the courtroom as a place where prosecutors and defense attorneys engage in legal battles as the jury watches “truth” emerge from the courtroom “combat.” Yet a quick resolution of cases through negotiated guilty pleas has been a major means of disposing of criminal cases since at least the 1800s (Vogel, 1999). Researchers began to shed light on plea bargaining in the 1960s, and the U.S. Supreme Court endorsed the process in the 1970s and subsequently clarified certain aspects of attorneys’ responsibilities in the process (Roberts, 2013). In Santobello v. New York (1971) (When a guilty plea rests on a promise of a prosecutor, the promise must be fulfilled.) , for example, Chief Justice Warren Burger ruled that prosecutors were obliged to fulfill promises made during plea negotiations. According to Burger, “‘Plea bargaining’ is an essential component of the administration of justice. Properly administered, it is to be encouraged.” Burger also listed several reasons that plea bargaining was a “highly desirable” part of the criminal justice process:

If every case went to trial, federal and state governments would need many times more courts and judges than they now have.

Plea bargaining leads to the prompt and largely final disposition of most criminal cases.

Plea bargaining reduces the time that pretrial detainees must spend in jail.

If defendants plead guilty to serious charges, they can be moved to prisons with recreational and educational programs instead of enduring the enforced idleness of jails.

By disposing of cases more quickly than trials would, plea bargaining reduces the amount of time that released suspects spend free on bail. Therefore, the public is better protected from crimes that such suspects may commit while on pretrial release.

Offenders who plead guilty to serious charges can move more quickly into prison counseling, training, and education programs designed to rehabilitate offenders.

In 1976, Justice Potter Stewart revealed the heart and soul of plea bargaining when he wrote in Blackledge v. Allison that plea bargaining “can benefit all concerned” in a criminal case. It offers advantages for defendants, prosecutors, defense attorneys, and judges. Defendants can have their cases completed more quickly and know what the punishment will be, instead of facing the uncertainty of a judge’s sentencing decision. Moreover, the defendant is likely to receive less than the maximum punishment that might have been imposed after a trial. Prosecutors are not being “soft on crime” when they plea bargain. Instead, they gain an easy conviction, even in cases in which enough evidence may not have been gathered to convince a jury to convict the defendant. They also save time and

resources by disposing of cases without having to prepare for a trial (Mongrain and Roberts, 2009). Private defense attorneys benefit by avoiding the expenditure of time and effort needed to prepare for a trial; they earn their fee quickly and can move on to the next case. Similarly, plea bargaining helps public defenders cope with large caseloads. Judges, too, avoid time-consuming trials and having to decide what sentence to impose on the defendant. Instead, they often adopt the sentence recommended by the prosecutor in consultation with the defense attorney, provided that it falls within the range of sentences that they deem appropriate for a given crime and offender.

The attraction of plea bargaining for prosecutors and defendants was evident in a notable plea-based conviction in 2011. Hall of Fame former football star Lawrence Taylor entered guilty pleas to two misdemeanor charges—sexual misconduct with an underage girl and patronizing a prostitute. When he was arrested in 2010, he was charged with third-degree rape and soliciting rape when a teenage girl had been brought to his room by a man who was subsequently charged with unlawful imprisonment, assault, and endangering the welfare of a child (Zinser and Schweber, 2010). Taylor’s attorney admitted that the former football star intended to patronize a prostitute but that he had been deceived about the girl’s age. Taylor, who had prior arrests on his record from earlier years when he had abused illegal drugs, faced the possibility of four years in prison. After the plea agreement, however, Taylor was sentenced to six years of probation, a $2,000 fine, and registration as a sex offender (Yaniv, 2011). For Taylor, the benefits of plea bargaining were clear: His charges were reduced, he avoided any time in jail or prison, and he gained certainty about what his sentence would be. The prosecutor gained a conviction without the time and expense of trial. It is possible that the prosecutor saw potential risk of acquittal in a trial if a jury accepted Taylor’s claim that he honestly believed that the girl was 19 rather than 16. The victim expressed dissatisfaction with the plea agreement, but the prosecutor claimed that the victim had been consulted in advance and had expressed approval for the sentence (Yaniv, 2011). In some sex-crime cases, victims favor plea agreements because they do not wish to go through the process of being questioned intensively by the defense attorney about the details of the crime. In addition, some women’s advocates fear that acquittals at trial send a message to victims that they should not bother enduring intensive questioning and verbal attacks in the courtroom if jurors will not believe their testimony (Loewen, 2013). In the case of Lawrence Taylor, did the plea agreement achieve justice? Such questions are difficult to answer, as conceptions of justice are in the eye of the beholder. However, these results spare the system and its decision makers from the risk of expending significant resources on uncertain outcomes.

In January 2017, former Vermont state legislator Norm McAllister sought to withdraw his plea to charges of lewd conduct and instead proceed to trial on more- serious sex-crime charges. He was accused of pressuring women for sex in exchange for paying their rent on property he owned. McAllister claimed that his defense attorney pressured him to enter a plea even though he maintained his innocence. Under the plea, he faced up to seven years in prison, but if convicted at trial, he could receive a life sentence. It was up to a judge to decide whether he

could withdraw his plea. Does the McAllister case demonstrate the enormous pressure that defendants may feel to enter a plea and avoid the most severe possible sentence, even when they claim to be innocent? If a former state senator claimed to feel that pressure, would a poor person with little education feel even greater pressure?

AP Images/Jeb Wallace-Brodeur

Defenders of plea bargaining justify the practice by noting that it permits judges, prosecutors, and defense attorneys to individualize justice by agreeing to a plea and a punishment that fit the offender and offense. The process also helps to encourage the defendant to cooperate and accept the results (M. M. O’Hear, 2007). Some argue that plea bargaining is an administrative necessity because courts lack the time and resources to conduct lengthy, expensive trials in all cases. Historical studies cast doubt on the latter justification, however, because during the nineteenth century, plea bargaining was a regular feature of case processing in courts with relatively few cases (Friedman, 1993; Heumann, 1978). Thus, instead of administrative need, the benefits of plea bargaining for the main participants appear to be the primary driving force behind the practice.

Because plea bargaining benefits all involved, it is little wonder that it existed long before the legal community publicly acknowledged it and that it still exists, even when prosecutors, legislators, or judges claim that they wish to abolish it. In California, for example, voters decided to ban plea bargaining for serious felony cases. Research showed, however, that when plea bargaining was barred in the felony trial courts, it did not disappear. It simply occurred earlier in the justice process, at the suspect’s first appearance in the lower-level municipal court (McCoy, 1993). Efforts to abolish plea bargaining sometimes result in bargaining over the charges instead of over the sentence that will be recommended in

exchange for a guilty plea. Moreover, if a prosecutor forbids his or her staff to plea bargain, judges may become more involved in negotiating and facilitating guilty pleas that result in predictable punishments for offenders.

Plea bargaining is a set of exchange relationships in which the prosecutor, the defense attorney, the defendant, and sometimes the judge participate. All have specific goals, all try to use the situation to their own advantage, and all tend to see the exchange as a success.

Plea bargaining does not always occur in a single meeting between prosecutor and defense attorney. One study showed that plea bargaining is a process in which prosecutors and defense attorneys interact again and again as they move along in the judicial process. As time passes, the prosecutor’s hand may be strengthened by the discovery of more evidence or new information about the defendant’s background (Caldwell, 2011; Emmelman, 1996). Often the prosecution rather than the defense is in the best position to obtain new evidence (Cooney, 1994). However, the defense attorney’s position may gain strength if the prosecutor does not wish to spend time going further down the path toward a trial.

Checkpoint

4. Why does plea bargaining occur?

Stop and Analyze: Plea bargaining provides benefits for actors involved in individual cases. But does it provide benefits for society? Make a list of societal benefits of plea bargaining. Then make a list of the harms or costs. Is plea bargaining worth its price for society?

11-2b Tactics of Prosecutor and Defense

Plea bargaining between defense counsel and prosecutor is a serious game in which friendliness and joking may mask efforts to advance each side’s cause. Each side tries to impress the other with its confidence in its own case while pointing out weaknesses in the other’s evidence. An unspoken rule of openness and candor helps keep the relationship on good terms. Little effort is made to conceal information that may later be useful to the other side in the courtroom. Studies show that the outcomes of plea bargaining may depend on the relationships between prosecutors and individual attorneys, as well as the defense counsel’s willingness to fight for the client and the judge’s inclination to become directly involved in negotiations (N. King and Wright, 2016; Bowen, 2009; Champion, 1989).

A tactic that many prosecutors bring to plea bargaining sessions is the multiple-offense indictment. Multiple-offense charges are especially important to prosecuting attorneys in difficult cases in which, for instance, the victim is reluctant to provide information, the value of the stolen item is in question, and the evidence may not be reliable. The police often file charges of selling a drug when they know they can probably convict only for possession. Because the defendants know that the penalty for selling is much greater, they are tempted to plead guilty to the lesser charge rather than risk a severer punishment, even though conviction on the more serious charge is uncertain (Caldwell, 2011). Such tactics can be especially powerful when the potential punishment upon conviction at trial would be severe (Ehrhard, 2008).

In the view of many defense attorneys, prosecutors hold the upper hand through their ability to file and pursue multiple charges. Their position was further strengthened by the increasingly severe sentences that legislatures enacted in the 1990s (R. Oppel, 2011). Even without strong evidence, the defense attorney must be concerned that a jury might convict the defendant based on limited evidence, especially if the defendant already has a prior criminal record. As described by one public defender, “Plea bargaining is not give and take. The government has tremendous leverage over the defense…. It’s more a take-it-or-leave-it situation” (Blankenship, 2013).

In some cases, defense attorneys may threaten to ask for a jury trial if concessions are not made (Bowen, 2009). Their hand is further strengthened if they have filed pretrial motions that require a formal response by the prosecutor. Another tactic is to seek to reschedule pretrial activities in the hope that, with delay, witnesses will become unavailable, media attention will die down, and memories of the crime will diminish by the time of the trial. Rather than resort to such legal tactics, however, some attorneys prefer to bargain on the basis of friendly interactions.

Neither the prosecutor nor the defense attorney is a free agent. Each needs the cooperation of defendants and judges. Attorneys often cite the difficulty of convincing defendants that they should accept the offered plea deal. Judges might not sentence the accused according to the prosecutor’s recommendation. On the other hand, although their role requires that they uphold the public interest, judges may be reluctant to interfere with a plea agreement. Thus, both the prosecutor and the defense attorney often confer with the judge about the sentence to be imposed before agreeing on a plea. If a particular judge is unpredictable in supporting plea agreements, defense attorneys may be reluctant to reach agreements in that judge’s court. Read “A Question of Ethics” at the end of the chapter to consider whether judges should announce that they will not approve plea agreements for certain kinds of crimes.

11-2c Pleas without Bargaining

Studies show that in many courts, give-and-take plea bargaining does not occur for certain types of cases, yet these cases have as many guilty pleas as they do in other courts (Bowen, 2009; Eisenstein, Flemming, and Nardulli, 1988). The term bargaining may be misleading in that it implies haggling. Many scholars argue that guilty pleas emerge after the prosecutor, the defense attorney, and sometimes the judge reach an agreement to settle the facts (Bowen, 2009; Utz, 1978). In this view, the parties first study the facts of a case. What were the circumstances of the event? Was it really an assault or was it more of a shoving match? Did the victim antagonize the accused? Each side may hope to persuade the other that provable facts back up its view of the defendant’s actions. The prosecution wants the defense to believe that strong evidence proves its version of the event. The defense attorney wants to convince the prosecution that the evidence is not solid and a jury trial would likely result in acquittal.

In some cases, the evidence is strong and the defense attorney has little hope of persuading the prosecutor otherwise. Through their discussions, the prosecutor and defense attorney seek to reach a shared view of the provable facts in the case. Once they agree on the facts, they will both know the appropriate charge, and they can agree on the sentence according to the locally defined going rate. At that point, a guilty plea can be entered without any formal bargaining, because both sides agree on what the case is worth in terms of the seriousness of the charge and the usual punishment. This process may be thought of as implicit plea bargaining, because shared understandings create the expectation that a guilty plea will lead to a less-than-maximum sentence, even without any exchange or bargaining.

The going rates for sentences for particular crimes and offenders depend on local values and sentencing patterns. Often, both the prosecutor and the defense attorney belong to a particular local legal culture and thus share an understanding about how cases should be handled Metcalfe, 2016). On the basis of their experiences in interacting with other attorneys and judges, they become keenly aware of local practices in the treatment of cases and offenders (Worden, 1995). Thus they may both know right away what the sentence will be for a first-time burglar or second-time robber. The sentence may differ in another courthouse because the local legal culture and going rates can vary (S. Bushway, Redlich, and Norris, 2014).

These shared understandings are important for several reasons. First, they help make plea bargaining more effective, because both sides understand which sentences apply to which cases. Second, they help create a cooperative climate for plea bargaining, even if bad feelings exist between the prosecutor and the defense attorney. The local legal culture

dictates how attorneys should treat each other and thereby reach agreements. Third, the shared understandings help maintain the relationship between the attorneys.

Checkpoint

5. What is implicit plea bargaining?

Stop and Analyze: Does plea bargaining place too much influence over people’s fates into the discretionary decisions of prosecutors and defense attorneys? Should judges, as the officials most responsible for and committed to neutral decision making, have greater participation in and influence over plea agreements? List the pros and cons of having judges involved in all discussions through which plea agreements develop.

11-2d Legal Issues in Plea Bargaining

In Boykin v. Alabama (1969) (Defendants must state that they are voluntarily making a plea of guilty.) , the Supreme Court ruled that defendants must state that they made their pleas voluntarily, before judges may accept those pleas. Judges have created standard forms that have questions for the defendant to affirm in open court before the plea is accepted. Trial judges also must learn whether the defendant understands the consequences of pleading guilty and confirm that the plea is not obtained through pressure or coercion. The judge’s role ensuring that defendants know their rights is especially important because there is no constitutional right to withdraw a guilty plea after it has been entered. However, there may be a basis to do so in exceptional cases, depending on governing law. For example, in federal courts a plea may be withdrawn if the defendant shows “a just and fair reason” to do so (United States v. Hyde, 1997).

Can a trial court accept a guilty plea if the defendant claims to be innocent? In North Carolina v. Alford (1970) (A plea of guilty may be accepted for the purpose of a lesser sentence from a defendant who maintains his or her innocence.) , the Court allowed a defendant to enter a guilty plea for the purpose of gaining a lesser sentence, even though he maintained that he was innocent (Gooch, 2010). However, the Supreme Court has stated that trial judges should not accept such a plea unless a factual basis exists for believing that the defendant is in fact guilty (Whitebread and Slobogin, 2000).

Another issue is whether the plea agreement has been fulfilled. If the prosecutor has promised to recommend a lenient sentence, he or she must keep that promise. The Supreme Court ruled that “when a [guilty] plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled” (Santobello v. New York, 1971). The Court also decided, in Ricketts v. Adamson (1987) (Defendants must uphold the plea agreement or risk going to trial and receiving a harsher sentence.) , that defendants must also keep their side of the bargain, such as an agreement to testify against co-defendants. However, defendants may forfeit their opportunity to challenge a prosecutor’s failure to fulfill the agreement if the defense attorney does not raise an objection to the prosecutor’s failure immediately when it occurs in the sentencing hearing (Puckett v. United States, 2009).

May prosecutors threaten to penalize defendants who insist on their right to a jury trial? Yes, according to Bordenkircher v. Hayes (1978) (A defendant’s rights were not violated by a prosecutor who warned that failure to agree to a guilty plea would result in a harsher sentence.) . Prosecutors may, for example, threaten repeat offenders with life sentences under habitual offender statutes if they do not agree to plead guilty and accept specified terms of imprisonment. A threat of more-serious charges, as long as such charges are legitimate and supported by evidence, is not considered improper pressure that makes a

guilty plea involuntary and hence invalid. Some scholars criticize this decision as imposing pressures on defendants that are not permitted elsewhere in the justice process (Dervan and Edkins, 2013; Caldwell, 2011; M. M. O’Hear, 2006).

In more-recent years, the Supreme Court has considered additional issues about plea bargaining. Although many of the Court’s prior decisions focused on endorsing the legality of the practice, specifying the judge’s responsibilities, and holding each side to its promises, a series of recent cases focused on protecting defendants against the consequences of mistakes by defense attorneys. Defendants do not possess enough knowledge and information to protect themselves in a negotiation process involving attorneys. Thus they are highly dependent on their attorneys’ judgment and advice.

Despite its advantages for all parties involved, plea bargaining can present difficult decisions for defendants, especially if the prosecutor insists that a defendant accept a long prison sentence. Defendants may balk as they wonder if they might not do just as well by taking their chances in a trial. Defense attorneys are supposed to provide advice to defendants based on knowledgeable predictions about the possible results of going to trial. Trial outcomes are not, however, easily predictable. The sentences that judges may impose after trials might not be easy to predict either.

Civic Engagement

Your Role in the System

11-2e Criticisms of Plea Bargaining

Although plea bargaining is widely used, some critics deplore it. The criticisms are of two main types. The first stresses due process and argues that plea bargaining is unfair because defendants give up some of their constitutional rights, especially the right to trial by jury (O’Keefe, 2010). The second stresses sentencing policy and points out that plea bargaining reduces society’s interest in appropriate punishments for crimes. In urban areas with high caseloads, harried prosecutors and judges are said to make concessions based on administrative needs, resulting in lighter sentences than those required by the penal code.

Plea bargaining also comes under fire because it is hidden from judicial scrutiny. Because the agreement is most often made at an early stage, the judge has little information about the crime and the defendant and thus cannot adequately evaluate the case. Nor can the judge review the terms of the bargain, that is, check on the amount of pressure put on the defendant to plead guilty. The result of bargain justice is that the judge, the public, and sometimes even the defendant cannot know for sure who got what from whom in exchange for what. In addition, plea bargaining does not happen in a uniform manner, so that decisions by different prosecutors about what deals to offer lead to unequal punishments for defendants originally charged with the same crimes (Devers, 2011).

Other critics believe that overuse of plea bargaining breeds disrespect and even contempt for the law. They say criminals look at the judicial process as a game or a sham, much like other “deals” made in life. Critics also contend that it is unjust to penalize people who assert their right to a trial by giving them stiffer sentences than they would have received if they had pleaded guilty. Indeed, the threat of severe sentences is so great in the federal court system that the number of trials in the federal system has dropped by two-thirds in the past 25 years even as the number of defendants has nearly tripled (“Thumb on the Scale,” 2013; Fields and Emshwiller, 2012). Research provides evidence that an extra penalty is imposed on defendants who take up the court’s time by asserting their right to a trial (Devers, 2011; Ulmer, Eisenstein, and Johnson, 2010). Critics note that federal sentencing guidelines also encourage avoidance of trial, because they include a two-point deduction from an offender’s base score for a guilty plea—thus lowering the sentence—for “acceptance of responsibility” (McCoy, 1995).

Finally, another concern about plea bargaining is that innocent people will plead guilty to acts they did not commit (Rakoff, 2014). Although it is hard to know how often this happens, some defendants have entered guilty pleas

Imagine that the voters of your state will consider a ballot issue to ban plea bargaining for serious crimes in the trial courts of general jurisdiction. Make a list of the consequences that you predict if the ballot issue is approved by the voters. Would you vote in favor of the ban? Then read a brief review that discusses what happened when California voters decided to approve such a ban.

when they have not committed the offense (McConville, 2000). Middle- class people might find it hard to understand how anyone could possibly plead guilty when innocent. However, people with little education, low social status, or mental problems may lack the confidence to say “no” to an attorney who pressures them to plead guilty (A. D. Redlich, Summers, and Hoover, 2010). Poor people may feel especially helpless in the stressful climate of the courthouse and jail. If they lack faith in the system’s ability to protect their rights and to find them not guilty, they may accept a lighter punishment rather than risk conviction for a serious offense (Covey, 2009). The risk has been exacerbated by the severity of sentences, especially in the federal court system (Rakoff, 2014). News stories highlight examples of individuals who felt pressured to accept guilty pleas, despite believing in their own innocence, simply because they did not want to take the risk of being sent to prison for decades if a jury believed the prosecutor at trial (S. Bushway, Redlich, and Norris, 2014; “Thumb on the Scale,” 2013; Fields and Emshwiller, 2012). Think about these criticisms as you examine “Civic Engagement: Your Role in the System.”

Checkpoint

6. What issues concerning plea bargaining has the Supreme Court examined?

7. What are the criticisms of plea bargaining?

Stop and Analyze: The U.S. Supreme Court’s decision in North Carolina v. Alford (1970) says that a judge can accept a guilty plea from someone who claims to be actually innocent. Does the acceptance of such pleas diminish the justice system’s goal of punishing only those who are guilty of crimes? If you were a judge, would you accept such pleas? Write a brief statement explaining your position.

Check-It

3. Multiple-offense charges are especially important to prosecuting attorneys in cases in which it might be difficult to obtain a conviction, because they

increase pressure on the defendant to accept a plea bargain.

a. True

b. False

Apply-It

4. Bill entered into a plea agreement that is quite favorable to him, but requires him to truthfully testify against his codefendants. Under , he must fulfill these terms or risk going to trial and receiving a harsher sentence.

a. Ricketts v. Adamson

b. North Carolina v. Alford

c. Bordenkircher v. Hayes

d. Boykin v. Alabama

8. In , the Supreme Court ruled that a defendant’s rights were not violated by a prosecutor who warned that failure to agree to a guilty plea would result in a harsher sentence.

a. Ricketts v. Adamson

b. North Carolina v. Alford

c. Bordenkircher v. Hayes

d. Boykin v. Alabama

11-3 Trial: The Exceptional Case Cases not dismissed or terminated through plea bargaining move forward for trial. The seriousness of the charge is probably the most important factor influencing the decision to go to trial. Defendants charged with property crimes rarely demand a trial. However, murder, felonious assault, or rape—all charges that bring long prison terms—are more likely to require judge and jury. In a study of the nation’s 75 largest counties, 30 percent of murder cases went to trial, the largest percentage for any crime. For all other crimes, trials occurred in 10 percent of cases or less, and typically much less, such as the 3 percent of robbery cases that went to trial (B. Reaves, 2013). When the penalty is harsh, many defendants seem willing to risk the possibility of conviction at trial.

Although such statistics suggest consistency in decisions about going to trial, the real practice varies considerably. Note in Table 11.2 the differences in the percentages of defendants going to trial for several offenses in various courts. What might explain the differences from one city to another and for one offense or another? Think about how prosecutors’ policies or sentencing practices in different cities can increase or decrease the incentives for a defendant to plead guilty.

Table 11.2

Percentage of Charged Cases that Went to Trial, by Offense

The percentages of cases that went to trial differ both by offense and by jurisdiction. Typically, it seems that the stiffer the possible penalty, the greater the likelihood of a trial. However, a prosecutor may be able to gain guilty pleas even in the most serious cases.

Jurisdiction Homicide Rape/Sexual Assault Robbery Assault

Drug Offenses

State courts, 75 largest counties

30% 10% 3% 4% 1%

Federal courts 15% — 4% 8% 3%

Jurisdiction Homicide Rape/Sexual Assault Robbery Assault

Drug Offenses

Mercer County, NJ (Trenton)

14% 0% 2% <1% <1%

Sources: Adapted from Adapted from B. Reaves, “Felony Defendants in Large Urban Counties, 2009,”

Bureau of Justice Statistics (December 2013); “Mercer County [NJ] Prosecutor’s Annual Report 2015”

(2016); Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (2017), Table 5.24.2010.

Most Americans are familiar with the image of the criminal trial. As portrayed in so many movies and television shows, the prosecutor and defense attorney face off in a tense confrontation in court. Each attorney attempts to use evidence, persuasion, and emotion to convince a jury of citizens to favor its arguments about the defendant’s guilt or innocence.

As we have seen in previous chapters, the trial process is based on the adversary process, an open battle between opposing lawyers that is assumed to be the best way to discover the truth. The authors of the Constitution apparently shared this assumption: The Sixth Amendment says the accused shall enjoy a speedy and public trial by an impartial jury in all criminal prosecutions. In theory, each side will present the best evidence and arguments it can muster, and the jury (A panel of citizens selected according to law and sworn to determine matters of fact in a criminal case and to deliver a verdict of guilty or not guilty.) will make a decision based on thorough consideration of the available information about the case.

However, because trials are human processes, many factors may keep a trial from achieving its goal of revealing the truth. The rules of evidence can prevent one side from presenting the most useful evidence. One side may have impressive expert witnesses, which the other side cannot afford to counter with its own experts. One side’s attorney may be more persuasive and likeable, thus swaying the jury in spite of the evidence. The jurors or judge may bring into the courtroom their own prejudices, which cause them to favor some defendants or automatically assume the worst about others (Ponulo et al., 2010). Fundamentally, we, as a society, place great faith in the trial process as the best means for giving complete consideration of a defendant’s potential guilt, yet the process does not always work as it should. Thus there is inevitable uncertainty about how any given trial will turn out. As a result, most convictions are based on the plea bargaining process through which both sides can seek to gain a predictable outcome and defendants can reduce the risk of receiving the harshest possible sentence.

Trials determine the fates of very few defendants. Although the right to trial by jury is ingrained in American ideology—it is mentioned in the Declaration of Independence, three amendments to the Constitution, and countless opinions of the Supreme Court—trials produced only 2 percent of felony convictions in the nation’s 75 most populous counties (B.

Reaves, 2013). Of these, most are typically jury trials; the rest are bench trials (Trial conducted by a judge who acts as fact finder and determines issues of law. No jury participates.) presided over by a judge without a jury. Defendants may choose a bench trial if they believe a judge will be more capable of making an objective decision, especially if the charges or evidence are likely to arouse emotional reactions in jurors.

Trials take considerable time and resources. Attorneys frequently spend weeks or months preparing evidence, responding to their opponents’ motions, planning trial strategy, and setting aside days or weeks to present the case in court. From the perspective of judges, prosecutors, and defense attorneys, plea bargaining is obviously an attractive alternative for purposes of completing cases quickly.

11-3a Going to Trial

Because the adversary process is designed to get to the truth, the rules of criminal law, procedure, and evidence govern the conduct of the trial. Trials are based on the idea that the prosecution and defense will compete before a judge and jury so that the truth will emerge. Above the battle, the judge sees to it that the rules are followed and that the jury impartially evaluates the evidence and reflects the community’s interest (Walpin, 2003). The adversary process and the inclusion of citizen-jurors in decision making often make trial outcomes difficult to predict. The verdict hinges not only on the nature of the evidence but also on the effectiveness of the prosecution and defense and on the attitudes of the jurors. In a jury trial, the jury is the sole evaluator of the facts in a case. Does this adversarial, citizen-juried trial process provide the best mechanism for finding the truth and doing justice in our most serious criminal cases?

Most jury trials worldwide take place in the United States. Common-law countries, such as Australia, Canada, Great Britain, and the United States, are the places that historically have used a group of citizens drawn from the community to determine the guilt of criminal defendants. In civil-law countries, this function is usually performed by a judge or judges, often assisted by two or three nonlawyers serving as assessors. However, a few civil-law countries, including Russia and Spain, have incorporated juries into their legal processes (Turanjanin, 2015; Thaman, 2000). Japan introduced criminal jury trials into their system in 2009 (V. Hans, 2014; Okada, 2006).

Juries perform six vital functions in the U.S. criminal justice system:

1. Prevent government oppression by safeguarding citizens against arbitrary law enforcement

2. Determine whether the accused is guilty on the basis of the evidence presented

3. Represent diverse community interests, so that no one set of values or biases dominates decision making

4. Serve as a buffer between the accused and the accuser

5. Promote knowledge about the criminal justice system by learning about it through the jury-duty process

6. Symbolize the rule of law and the community foundation that supports the criminal justice system

What Americans Think

Question:

“How often do most people who are on trial have a jury that is fair and impartial?”

In February 2017, David Watson stood trial for an alleged triple-murder related to the disappearance of his wife more than a decade earlier during a child custody dispute. What other kinds of cases are likely to lead to jury trials?

AP Images/Mike Christy

As indicated by the responses in “What Americans Think,” Americans have divided views on the fairness of the jury process.

As a symbol of law, juries demonstrate to the public—and to defendants—that decisions about depriving individuals of their liberty will be made carefully by a group of citizens who represent the community’s values. In addition, juries provide the primary element of direct democracy in the judicial branch of government. Through participation on juries, citizens use their votes to determine the outcomes of cases (Heyman, 2014; C. E. Smith, 1994). This branch of government, which is dominated by judges and lawyers,

Question:

“Who would you trust more to give a fair verdict?”

Source: The Harris Poll, “Just under Three in Five Americans Believe Juries Can Be Fair and Impartial All or Most of the Time,” Harris Interactive, January 21, 2008 ( www.harrisinteractive.com).

offers few other opportunities for citizens to shape judicial decisions directly. Think about your own views of jury service as you read “Civic Engagement: Your Role in the System.” In the United States, a criminal jury traditionally is composed of 12 citizens, but some states now allow as few as 6 citizens to make up a jury in noncapital cases. This reform was recommended to modernize court procedures and reduce expenses. It costs less for the court to contact, process, and pay a smaller number of jurors. The Supreme Court in Williams v. Florida (1970) (Juries of fewer than 12 members are permitted by the U.S. Constitution.) upheld the use of small juries. Many states use smaller juries for misdemeanor cases (Malega and Cohen, 2013). In Burch v. Louisiana (1979), the Court ruled that six-member juries must vote unanimously to convict a defendant, but unanimity is not required for larger juries. Oregon and Louisiana permit juries to convict defendants by votes of 10 to 2, although Oregon requires unanimity for first- degree murder cases (C. Wilson, 2016; A. Cohen, 2014). Thus people can be sent to prison for long sentences in these states when the same case in another state would have failed to produce a conviction due to the presence of unpersuaded jurors. Critics of the change to six-person juries charge that the smaller group is less representative of the conflicting views in the community and too quick to bring in a verdict (S. S. Diamond et al., 2009; Amar, 1997).

Checkpoint

8. Approximately what percentage of felony cases reach conclusion through a trial?

9. What are three of the six functions that juries serve for the criminal justice system?

10. What has the Supreme Court decided concerning the size and unanimity requirements of juries?

Stop and Analyze: Are citizens drawn from the community capable of setting aside their personal biases and able to understand complex or emotional testimony? Some other countries use “mixed tribunals” that include several judges and several citizens deciding cases together. List two reasons why you either favor or oppose the use of such mixed tribunals in the United States.

Civic Engagement

Your Role in the System

Imagine that you receive a notice to report to jury duty—but it is for the same day that you are supposed to drive four hours to an arena in order to attend a concert by your favorite musical group. A friend says to you, “Don’t miss the concert. Just call in and say that you’re sick.” Write down your responses to the following questions: Is jury service an important civic duty? Should someone report for jury duty even when it is highly inconvenient? Is jury service a burden to be avoided? Find a survey published online that presented Americans with a similar question and see how your responses compare.

11-3b The Trial Process

The trial process generally follows eight steps:

1. Selection of the jury

2. Opening statements by prosecution and defense

3. Presentation of the prosecution’s evidence and witnesses

4. Presentation of the defense’s evidence and witnesses

5. Presentation of rebuttal witnesses

6. Closing arguments by each side

7. Instruction of the jury by the judge

8. Decision by the jury

The details of each step may vary according to each state’s rules. Although only a small number of cases go to trial, understanding each step in the process and considering the broader impact of this institution are important.

Jury Selection

The selection of the jury, outlined in Figure 11.2, is a crucial first step in the trial process. Because people always incorporate their experiences, values, and biases in their decision making, prosecutors and defense attorneys actively seek to identify and select potential jurors who may be sympathetic to their side and to exclude potentially hostile jurors (Joy, 2015). Lawyers do not necessarily achieve these goals, because the selection of jurors involves the decisions and interactions of prosecutors, defense attorneys, and judges, each of whom has different objectives in the selection process.

Figure 11.2

Jury Selection Process for a 12-Member Jury

Potential jurors are drawn at random from a source list. From this pool, a panel is selected and presented for duty. The voir dire examination may remove some, while others will be seated. The 14 jurors selected include 2 alternates.

Jurors are selected from among the citizens whose names have been placed in the jury pool. The composition of the jury pool tremendously impacts the ultimate composition of the trial jury. In most states, the jury pool is drawn from lists of registered voters and licensed drivers, but research has shown that nonwhites, the poor, and young people register to vote and maintain valid driver’s licenses at lower rates than do the rest of the population. As a result, members of these groups are underrepresented on juries (Gau, 2016; Sommers, 2009). Read the Inside Today’s Controversies feature to consider a recent Supreme Court decision concerning the racial issues regarding juries.

Inside Today’s Controversies

Race and the Jury

As we have seen in previous chapters, issues concerning race and criminal justice have been at the forefront of public attention and controversy in the twenty-first century. In particular, issues concerning police relationships with inner-city neighborhoods and police use of force against unarmed African American men have repeatedly led to highly publicized incidents and protests. Less visible to the public are issues concerning racial issues in jury trials. There are questions about whether we can develop selection procedures that will better ensure that juries reflect all of society and not use methods that leave people out. In addition, there are concerns

that racial biases may affect decision making during jury deliberations. The U.S. Supreme Court addressed both of these issues in 2016 and 2017.

In Foster v. Chatman (2016), the Court examined the death-penalty murder conviction and sentence of an African American man. State law granted the prosecution the authority to remove ten potential jurors through discretionary decision making, so long as the removal decision was not based on the jurors’ race or gender. During the appeal process, the defendants’ lawyer obtained prosecutors’ notes and records that presented many notations and comments indicating prosecutors’ commitment to exclude African American potential jurors. The prosecution ultimately removed all four African American jurors who were left among the available choices as the selection process proceeded.

When asked to give nonracial reasons for the exclusion of the African Americans from the jury pool, the prosecutors’ answers were not consistent with the criteria applied to white jurors. For example, a prosecutor said one reason for the exclusion of an African American was the fact that she was divorced. Yet the prosecutor raised no such objection to several divorced whites who were placed on the jury. With respect to another African American excluded from the jury pool, the prosecutor said the juror’s son was the same age as the defendant and therefore would make the juror too sympathetic to the defendant. Yet the prosecutor raised no such objection to two white jurors who had sons within a year or two of the African American juror’s son and the defendant.

Ultimately, the Supreme Court ruled 7 to 1 that the prosecution had violated rules against engaging in racial discrimination in jury selection. The case raised concerns about the risk that prosecutors may engage in discriminatory behavior in jury selection for many cases yet avoid accountability when they had no notes and records in the files that provided evidence of their biased behavior.

In 2017, the Court examined an appeal from a sexual assault case against a Mexican American man who allegedly groped two girls. After he was convicted at trial, two jurors immediately told the defense attorney that another juror had made anti-Hispanic comments during jury deliberations, including the statement that “I think he did it because he is Mexican and Mexican men take whatever they want.” The allegedly biased juror also made other statements based on stereotypes, such as asserting that 90 percent of Mexican American men are aggressive with women.

Typically, American courts refuse to examine what occurred during jury deliberations. In theory, the other jurors will counteract any biases by individual jurors. Yet there is no escaping the possibility that the individual juror making biased statements is influenced by a set of unfair beliefs that may prevent fair and careful consideration of evidence. In Pena-Rodriguez v. Colorado (2017), by a 5-to-3 vote, the Court overturned the conviction based on the racial bias expressed by juror during jury deliberations. The justices in the majority emphasized that:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one.

By contrast, the three dissenting justices argued for maintaining judges’ traditional deference to jury decisions by avoiding any examination or reconsideration of what the jurors discussed or decided. The dissenters also expressed concern that the decision would encourage defense attorneys and defendants’ family members to pester jurors after trials to try to find out the details of discussions in the jury room. They also feared that the decision would encourage an increase in appeals challenging whether juries’ discussions and deliberations were proper.

Issues similar to those in the foregoing cases emerge periodically when information is revealed that might normally remain secret. For example, in 2016, a jury in Cincinnati was unable to reach a verdict in the case of Ray Tensing, a white police officer who shot and killed unarmed African American motorist Sam DuBose during a traffic stop in 2015. When DuBose was asked to provide his driver’s license, he put the car into drive and began to move the vehicle forward, apparently to avoid discovery of the fact that his license had been suspended and he had marijuana in his car. Tensing had reached into the vehicle as if to grab the steering wheel, but then pulled his gun and shot DuBose in the head. Tensing claimed that he feared for his life because his arm was caught in the car as it moved forward. However, his police body camera appeared to show that his arm was not caught and he was free from the car when he fired the fatal shot. Prosecutors charged Tensing with murder. After the mistrial in the first case, the prosecutor planned to retry Tensing on the same charge in 2017 in front of a different jury.

After the first jury, composed of ten whites and two African Americans was unable to reach a verdict, therefore resulting in a mistrial, the judge released juror questionnaires that had been filled out by the jurors, with their individual identities hidden when the forms were made public. Several of the comments made by the jurors prior to trial raised concerns about bias, including racial bias:

Four jurors checked a box to indicate that they agreed that some racial and ethnic groups tend to be more violent than others. One said “strongly agree.”

One juror indicated that he was the nephew of a police officer and said police are the “good guys” who “should be given the benefit of the doubt.”

One juror responded to a question about the Black Lives Matter movement by saying that police shootings result from “victims being wrong to begin with.”

One juror described a “frightening” experience with another race by saying he was assaulted by African Americans while in high school.

Critics complained that these people should not have been part of a jury in a case with racial overtones and police involvement because they provided indications prior to trial that they had biases either against African Americans or in favor of the police.

Critical Thinking and Analysis

What is most important for the justice system—respecting the confidentiality of jurors’ discussion in the jury room or making an effort to eliminate racial and ethnic biases in the justice system? In some respects, this question is at the heart of the disagreement among the Supreme Court’s justices. What are the two strongest arguments for each side in this debate? Which side has the stronger argument? Write a memo explaining the reasons for your conclusions.

Sources: Associated Press, “Four Jurors in Cop Ray Tensing’s Murder Case Expressed Potentially

Biased Attitudes in Pre-Trial Questions,” New York Daily News, November 30, 2016 (

www.nydailynews.com); R. Barnes, “Racial Bias in the Jury Room Can Violate a Defendant’s Right to a

Fair Trial, Supreme Court Says,” Washington Post, March 6, 2017 ( www.washingtonpost.com); A. Liptak,

“Supreme Court Finds Racial Bias in Jury Selection for Death Penalty Case,” New York Times, May 23,

2016 ( www.nytimes.com).

In many cases, the presence or absence of these groups may make no difference in the ultimate verdict. In some situations, however, members of these groups will likely interpret evidence differently than will their older, white, middle-class counterparts who dominate the composition of juries (Cornwell and Hans, 2011). For example, poor people, nonwhites, and young people may be more likely to have had unpleasant experiences with police officers and therefore be less willing to believe that police officers always tell the truth (S. J. Forman, 2015). Today, courts may supplement the lists of registered voters and driver’s licenses with other lists, such as those for hunting licenses and utility bills, in order to diversify the jury pool (Hannaford-Agor, 2011).

Several states are considering increases in jurors’ daily pay. In general, jurors receive minimal financial compensation for their service. Thus, even increases that occur tend to be small. Texas, for example, went from $6 per day to $40 per day in trials lasting more than one day. It is hoped that such efforts will make jury service more attractive for poor people who might otherwise avoid participating because they cannot afford to lose pay by missing work (Axtman, 2005). Several counties in Michigan sought to reduce financial hardships on jurors by paying them in cash at the end of each day in court instead of making them wait several weeks to receive a check in the mail (C. Hall, 2015).

Although some commentators believe that juror compensation must be increased in an effort to broaden participation, the budget crises affecting state and local governments have actually pushed compensation in the opposite direction (Taylor, 2015). Many jurisdictions, including Cleveland, Ohio, and Topeka, Kansas, reduced jurors’ pay in specific budgetary years in order to save money (Dubail, 2009; KTKA News, 2011). Portage County, Ohio,

actually suspended all pay for jurors one year because of an unexpected increase in expensive murder trials, but later resumed juror pay (Sever, 2010).

Criminal Justice and the Risk of Misinformation

Jurors and Electronic Communications

In October 2014, a Florida judge presiding over a manslaughter case faced a problem. Despite giving explicit instructions to the jurors prohibiting all unsupervised access to the Internet while being kept overnight in seclusion at a hotel, one juror took his laptop to his room and went online. He claimed that he only checked football scores. However, his behavior raised grave concerns. He was serving on a jury for a second trial of a wealthy man accused of running a stop sign while drunk and killing a man with his luxury vehicle. The judge did not want any jurors to know —or be influenced by—the fact that the defendant was convicted in a first trial before having the verdict overturned due to the misconduct of one juror who provided erroneous background information and drank alcohol prior to jury deliberations. In addition, a prospective juror being considered for the second trial had been arrested during jury selection for looking up information online, discovering that there had been a prior trial, and sharing that information with another prospective juror. In the end, the second jury convicted the wealthy defendant again, although defense attorneys continued to pursue various avenues for appeals.

The Florida case highlights a problem that has existed for the past decade in courts around the country. People are so accustomed to checking their email, looking at social media, reading online news, and communicating with friends via Facebook that judges are justifiably concerned that jurors who continue these behaviors during trial will gain information that unfairly affects their decisions. In the Florida case, the concern centered on factual information from news reports about the prior case. In other cases, there is also a risk that jurors will stumble upon rumors, misinformation, and falsehoods about a particular defendant or the real facts of a specific case. Jurors are only supposed to listen to information that fulfills the rules of courtroom evidence, arguments from attorneys, and instructions from the judge. All of the jurors should have the same information and it should be information from the courtroom that both sides’ attorneys had the opportunity to challenge. Information from social media and a private online search does not comply with the rules of the legal process.

Similar problems have been evident in courts throughout the country. In April 2013, for example, a judge in Oregon noticed a strange glow in front of a juror just as the lights in the courtroom were being turned off in order to show video evidence. The judge cleared the courtroom of everyone except the juror in question and confronted the juror about the source of the glowing light: a smartphone being used for texting. The judge had specifically instructed the jurors prior to the trial that they were

forbidden to use any technological devices in the courtroom. Suddenly, the 26-year- old juror found himself being led away by deputies. The judge ruled that he was in contempt of court and sent him to jail. After two days, the judge permitted the disobedient juror to be released.

In other examples, a Pennsylvania judge nearly declared a mistrial when a juror posted updates on Twitter and Facebook concerning developments and decisions in a trial. A mistrial ends a trial and forces the prosecutor to begin again after selecting a new jury. A Florida judge declared a mistrial when a witness sent a text message from the witness stand while the lawyers were engaged in a brief conference with the judge at the front of the courtroom. Jurors in other cases have been seen sending text messages or checking their email on smartphones during the middle of trials. Some jurors have attempted to do their own research on a case in progress by doing Internet searches for information while sitting in the jury box during a trial. Moreover, there have been problems in some cases with defendants’ relatives contacting jurors during trials through Facebook, email, and text messages. Even worse, some jurors have been threatened by unknown individuals through text messages and cell-phone calls. Because many older judges are not technologically savvy, there are fears that they do not even realize all of the risks posed by electronic communications. How should courts address these issues?

Judges all over the country now instruct jurors that they cannot use electronic devices during trials or during jury deliberations. It is very difficult, however, to make sure that jurors obey those instructions, especially during multiday trials when they can go home and send messages to their friends about the case or receive information and opinions from acquaintances and strangers. There are grave risks that jury deliberations will be distorted if one or more jurors have improperly obtained information from the Internet or outside sources that is either inaccurate or inadmissible under the rules of evidence for trials.

Examine the Issue

How would you suggest that the justice system address the risks that social-media usage poses for jury trials? Can the problem be handled by educating jurors, or should there be sanctions, including possible criminal charges for violating a judge’s instructions barring the use of electronic media? List two arguments in favor of the solution that you believe will be most appropriate and effective.

Sources: Associated Press, “Oregon Juror Jailed for Texting during Trial,” Seattle Times, April 18, 2013 (

www.seattletimes.com); L. Bischoff, “Judges Combat Twitter, Facebook Use by Jurors during Trials,”

Dayton Daily News, February 12, 2010 ( www.daytondailynews.com); M. Freeman, “John Goodman

Retrial: Juror Broke Court Rules with Personal Laptop in Hotel Room,” Broward Sun-Sentinel, October

20, 2104 ( www.sun-sentinel.com); N. Haralambous, “Educating Jurors: Technology, the Internet and the

Jury System,” Information and Communications Technology Law 19 (2010): 255–66; N. Korecki, “Hale

Juror: Neo-Nazi’s Texts, Calls Terrifying,” Chicago Sun Times, January 4, 2011 ( www.suntimes.com); A.

St. Eve, C. Burns, and M. Zuckerman, “More from the #Jury Box: The Latest on Juries and Social Media,”

Duke Law and Technology Review 12 (2014): 64–91; B. Shammas, “Prospective Juror Arrested in

Goodman Case Sentenced to Community Service,” Broward Sun-Sentinel, June 9, 2015 ( www.sun-

sentinel.com).

In addition, lawyers and judges in many courts are concerned that potential jurors increasingly seek to be excused from service due to financial hardships. Small business owners feel that they cannot be away from their struggling businesses. Sole wage earners for a family cannot pay their bills with the minimal compensation provided to jurors (Weiss, 2009). Thus difficult economic times affect the composition of jury pools and potentially make them less representative of the entire community. Even worse, in some courthouses when judges refuse to excuse jurors for claims of financial hardship, those jurors may openly express their anger by asserting that they will not be objective in their decision making. Such expressions can lead attorneys on both sides to agree to have a bench trial in order to avoid problems in dealing with disgruntled jurors (C. J. Williams, 2010). Jury trials are also affected by other contemporary developments in society. Read the Criminal Justice and the Risk of Misinformation feature to consider the challenges judges and attorneys face in dealing with jurors who are accustomed to using the Internet and social media throughout the day.

Only about 15 percent of adult Americans have ever been called for jury duty. Retired people and homemakers with grown children tend to be overrepresented on juries because they are less inconvenienced by serving and are often less likely to ask to be excused because of job responsibilities or childcare problems. To make jury duty less onerous, many states have moved to a system called one-day, one-trial, in which jurors serve for either one day or the duration of one trial.

The prosecutor and defense attorney present evidence in their efforts to persuade the judge and jury. Their arguments and presentations are not neutral and objective, because they are professionally obligated to argue zealously for a particular perspective. In theory, this clash of advocates will make the truth emerge. Are there risks that the truth will actually be hidden? Are trials the most effective way to produce accurate determinations of guilt?

AP Images/Dave Martin

Close Up

Should We Abolish the Peremptory Challenge?

The Supreme Court’s decision in Foster v. Chatman (2016) brought renewed attention to the debate about whether and how attorneys’ discretionary use of peremptory challenges creates biased juries or discriminates against certain people and denies them the opportunity to serve as jurors due to their race or other improper consideration. As you recall from the Inside Today’s Controversies feature, the reason the Supreme Court could detect improper racial discrimination in peremptory challenges in that case was entirely due to the prosecutors’ preservation of notes that demonstrated their team’s preoccupation with preventing African Americans from serving on the jury. It is rare to find such notes kept in the files after a trial. Thus there are opportunities for attorneys to engage in improper discrimination with little likelihood of being caught.

Despite the Supreme Court statements prohibiting racial discrimination in the use of peremptory challenges, a decision the Court issued in the 1990s made it clear that there were still opportunities to discriminate. Jimmy Elem faced trial on robbery charges in a Missouri state court. During jury selection, the prosecutor used peremptory challenges to exclude two African American men from the jury. Elem’s attorney objected, claiming that the prosecutor appeared to be excluding potential jurors because of their race. Under the U.S. Supreme Court’s decision in Batson v. Kentucky (1986), a trial judge is obligated to ask the prosecutor to provide a nonracial reason for removing jurors when a prosecutor’s use of peremptory challenges seems based on racial exclusion. In response to the judge’s question, the prosecutor replied,

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly unkempt hair. Also he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury … with the facial hair…. And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.

The trial judge accepted the prosecutor’s explanation and the trial moved forward. Elem subsequently filed a habeas corpus action in the federal courts claiming that the prosecutor had used a flimsy, nonsensical excuse to cover the fact that the exclusions were really based on race. The U.S. court of appeals agreed with Elem and declared that peremptory challenges that appear to be based on race are valid only if actually based on reasons related to the individuals’ qualifications to be a good juror. The court of appeals did not believe that having curly or long hair affected one’s ability to be a good juror.

Missouri carried the case forward to the U.S. Supreme Court. In a 7-to-2 decision, the Supreme Court reversed and said that prosecutors can put forward silly, superstitious, and implausible reasons as long as the trial judge accepts the exclusion as being based on something other than race or gender.

By contrast, the Supreme Court has looked more closely at other cases. In addition to the recent example of Foster v. Chatman (2016), the facts of Snyder v. Louisiana (2008) led seven justices, including conservatives Chief Justice John Roberts and Justice Samuel Alito, to question an African American man’s conviction when prosecutors eliminated all of the African Americans from the jury pool. Unlike in Purkett v. Elem, the majority was not willing to automatically accept the prosecutor’s and trial judge’s reasons for excluding these jurors.

The use of peremptory challenges permits the attorneys in a case to influence the composition of a jury by permitting them to use their discretion to exclude potential jurors. The Supreme Court has declared that such challenges cannot be used to discriminate by race or sex, but it has not strictly enforced this rule. Trial judges continue to possess the authority to accept reasons for race- and sex-based exclusions that may merely cover up the actual discriminatory intent of the attorney.

Debate the Issue

The late Supreme Court Justice Thurgood Marshall (service: 1967–1991), the first African American justice to serve on the Court, argued that the peremptory challenge should be abolished because it was typically a mechanisms to increase bias in jury decision making. By contrast, the late Supreme Court Justice Antonin Scalia (service: 1986–2016) argued that peremptory challenges are an important tradition in the American legal system. Others argue that the use of peremptory

challenges adds to the legitimacy of trials in the eyes of defendants because they will feel as if their attorneys had some influence over choosing jurors. Imagine that you and your classmates are state legislators considering a proposed bill to abolish peremptory challenges in jury selection for trials in your state’s courts. In your discussions of the issue, can you persuade each other to see which side’s arguments are strongest? How would you vote on the bill? Do you think peremptory challenges are helpful, harmful, or irrelevant in the trial process?

Sources: P. Joy and K. McMunigal, “Racial Discrimination and Jury Selection,” (2016), Washington

University in St. Louis Legal Studies Research Paper No. 16-07-08 ( https://ssrn.com/abstract=2811765);

A. Liptak, “Supreme Court Finds Racial Bias in Jury Selection for Death Penalty Case,” New York Times,

May 23, 2016 ( www.nytimes.com).

The courtroom process of voir dire (A questioning of prospective jurors in order to screen out people the judge or attorneys think might be biased or otherwise incapable of delivering a fair verdict.) (which means “to speak the truth”) is used to question prospective jurors to screen out those who might be biased or incapable of making a fair decision (Harrison, 2011). Attorneys for each side, as well as the judge, may question jurors about their background, knowledge of the case, and their acquaintance with any participants in the case. Jurors will also be asked whether they or their immediate family members have been crime victims or otherwise involved in a criminal case in a manner that may prevent them from making open-minded decisions about the evidence and the defendant. If a juror’s responses indicate that he or she will not be able to make fair decisions, an attorney may request a challenge for cause (Removal of a prospective juror by showing that he or she has some bias or some other legal disability. The number of these challenges permitted to attorneys is potentially unlimited.) . The judge must rule on the challenge, but if the judge agrees with the attorney, then the juror is excused from that specific case. There is usually no limit on the number of jurors that the attorneys may challenge for cause. Nonetheless, identifying all of a juror’s biases through brief questioning is not easy.

Although challenges for cause fall ultimately under the judge’s control, the prosecution and defense can exert their own control over the jury’s composition through the use of peremptory challenges (Removal of a prospective juror without giving any reason. Attorneys are allowed a limited number of such challenges.) . Using these challenges, the prosecution and defense can exclude prospective jurors without giving specific reasons. Attorneys use peremptory challenges to exclude jurors whom they think will be unsympathetic to their arguments (Revesz, 2016). Attorneys usually use hunches about which jurors to challenge; there is little evidence that they can accurately identify which jurors will be sympathetic or unsympathetic to their side (M. S. White, 1995). Normally, the defense is allowed eight to ten peremptory challenges, and the prosecution six to eight.

The use of peremptory challenges has raised concerns that attorneys can use them to exclude, for example, African American jurors when an African American is on trial (Price, 2009). The same problem potentially exists with Latino jurors, members of the nation’s

largest minority group in the twenty-first century (Bagnato, 2010). In a series of decisions in the late 1980s and early 1990s, the Supreme Court prohibited using peremptory challenges to systematically exclude potential jurors because of their race or gender (e.g., Batson v. Kentucky, 1986). Jury-selection errors can provide the basis for appeals if a defendant is convicted at trial (Pizzi and Hoffman, 2001). The case of Foster v. Chatman (2016) discussed in the Inside Today’s Controversies feature was one example of a case in which the Supreme Court rejected prosecutors’ use of peremptory challenges to exclude African Americans from a jury. In practice, however, the enforcement of this prohibition on race and gender discrimination falls to the trial judge (C. E. Smith and Ochoa, 1996). If a trial judge is willing to accept flimsy excuses for race-based and gender-based exclusions, then the attorneys can ignore the ban on discrimination. Ask yourself whether peremptory challenges have a positive or negative effect on jury selection (Revesz, 2016). Do you think peremptory challenges should be abolished? Read the Close Up feature to consider this issue.

Checkpoint

11. What is voir dire?

12. What is the difference between a peremptory challenge and a challenge for cause?

Stop and Analyze: Should the voir dire process be standardized to be sure that all potential jurors for every case are asked the same questions? List two arguments favoring standardization and two in opposition. Which side is more persuasive?

Opening Statements

After the jury has been selected, the trial begins. The clerk reads the complaint (indictment or information) detailing the charges, and the prosecutor and the defense attorney may, if they desire, make opening statements to the jury to summarize the position that each side intends to take. The statements are not evidence. The jury is not supposed to regard the attorneys’ statements as proving or disproving anything about the case.

Presentation of the Prosecution’s Evidence

One of the basic protections of the American criminal justice system is the assumption that the defendant is innocent until proved guilty. The prosecution must prove beyond a reasonable doubt, within the demands of the court procedures and rules of evidence, that the individual named in the indictment committed the crime. This means that the evidence excludes all reasonable doubt; it does not have to determine absolute certainty.

By presenting evidence to the jury, the prosecution must establish a case showing that the defendant is guilty. Evidence is classified as real evidence, demonstrative evidence, testimony, direct evidence, and circumstantial evidence.

Real evidence (Physical evidence such as a weapon, records, fingerprints, stolen property —objects actually involved in the crime.) might include such objects as a weapon, business records, fingerprints, or stolen property. These are real objects involved in the crime. Demonstrative evidence (Evidence that is not based on witness testimony but demonstrates information relevant to the crime, such as maps, X-rays, and photographs; includes real evidence involved in the crime.) is any evidence presented for jurors to see and understand without testimony. Real evidence is one form of demonstrative evidence. Other forms of demonstrative evidence are items not involved in the crime but still used to make points to jurors. These include maps, X-rays, photographs, models, and diagrams.

Most evidence in a criminal trial, however, consists of the testimony (Oral evidence provided by a legally competent witness.) of witnesses. Witnesses at a trial must be legally competent. Thus the judge may be required to determine whether the witness whose testimony is challenged has the intelligence to tell the truth and the ability to recall what was seen. Witnesses with inadequate intelligence or mental problems can be excluded as unqualified to present testimony. Direct evidence (Eyewitness accounts.) refers to eyewitness accounts for example, “I saw John Smith fire the gun.” Circumstantial evidence (Evidence, provided by a witness, from which a jury must infer a fact.) requires that the jury infer a fact from what the witness observed: “I saw John Smith walk behind his house with a gun. A few minutes later I heard a gun go off, and then Mr. Smith walked toward me holding a gun.” The witness’s observation that Smith had a gun and that the witness then heard a gun go off does not provide the direct evidence that Smith fired his gun; yet the jury may link the described facts and infer that Smith fired his gun. After a witness has given testimony, he or she can be cross-examined by counsel for the other side.

Because many cases rely on scientific evidence, especially in the form of experts’ testimony about DNA, blood spatters, bullet fragments and trajectories, and the nature of physical injuries, there are concerns that judges and jurors do not fully understand the information presented (Cheng, 2006). Determinations of guilt may hinge on the effectiveness of the presentation of such evidence rather than the accuracy and verifiability of the scientific conclusions (McAuliff and Duckworth, 2010). Judges’ and jurors’ lack of expertise about scientific matters means that there are risks that they cannot effectively question and analyze certain kinds of evidence, although recent research indicates most jurors are capable of comprehending scientific evidence (V. P. Hans et al., 2011).

The public’s fascination with the forensic science portrayed in television shows, such as CSI: Crime Scene Investigation, has led some prosecutors to complain about an escalation in jurors’ unrealistic expectations about the presentation of DNA analysis or other scientific evidence in order to establish guilt in each criminal trial. In reality, many criminal investigations and prosecutions are not based on DNA, fingerprints, or other scientific

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evidence. Instead, prosecutors more often present witness testimony and circumstantial evidence about a suspect’s presence in a certain location and his or her relationship with the victim. However, some prosecutors have come to fear that jurors will not render a guilty verdict without the presentation of scientific evidence.

Research on the so-called CSI effect raises questions about whether jurors are actually less inclined to convict defendants in the absence of scientific evidence. Surveys indicate that jurors may expect to see specific kinds of scientific evidence, but this expectation may be related to a more general “tech effect” of Americans using technology in their daily lives rather than watching specific television shows. Moreover, the increased expectation for scientific evidence does not necessarily mean that jurors will not vote to convict a defendant without it (Huey, 2010; Shelton, 2008). Despite the reliance on scientific evidence, there are risks that errors in the investigation process will lead jurors, with their increasing faith in science and technology, to make errors. Read the Technology and Criminal Justice feature to consider the care that must be taken in order to use scientific evidence properly and avoid errors.

The attorney for each side can challenge the other side’s presentation of evidence. If presented evidence violates the rules, reflects untrustworthy hearsay or opinions, or is not relevant to the issues in the case, an attorney will object to the presentation. In effect, the attorney is asking the judge to rule that the opponent’s questionable evidence cannot be considered by the jury.

After the prosecution has presented all the state’s evidence against the defendant, he or she informs the court that the people’s case rests. It is common for the defense then to ask the court to direct the jury to bring forth a verdict of not guilty. Such a motion is based on the defense argument that the state has not presented enough evidence to prove its case. If the motion is sustained by the judge (it rarely is), the trial ends; if it is overruled, the defense presents its evidence.

Presentation of the Defense’s Evidence

The defense is not required to answer the case presented by the prosecution. As it is the state’s responsibility to prove the case beyond a reasonable doubt, it is theoretically possible—and in fact sometimes happens—that the defense rests its case immediately. Usually, however, the accused’s attorney employs one or more of the following strategies:

contrary evidence is introduced to rebut or cast doubt on the state’s case,

an alibi is offered, or

an affirmative defense is presented.

As discussed in Chapter 4, defenses include self-defense, insanity, duress, and necessity.

When singer R. Kelly was acquitted of child pornography charges by a Chicago jury in June 2008, the defense attorneys used every argument that they could, including arguments that

were not consistent with each other, in order to cast doubt on the prosecution’s case. The case hinged on whether a VHS tape showed Kelly having sex with a specific underage girl. The defense suggested that the tape showed another man who looked like Kelly, that computer manipulation had made the tape look like Kelly, or that the tape was made with models and prostitutes who looked like Kelly and the alleged victim (Streitfeld, 2008). The defense attorneys did not need to prove Kelly’s innocence; they just needed to raise questions in the jurors’ minds about the accuracy of the prosecution’s claims.

Technology & Criminal Justice

Forensic Evidence and the Risk of Error

In 2015, the FBI admitted that scientists in its forensic science laboratory had provided flawed testimony that favored the prosecution in dozens of cases over the preceding two decades. Of particular concern were statements by FBI experts erroneously declaring that hair samples found at crime scenes matched those of defendants. Hair analysis and bite-mark analysis have turned out to be especially unreliable in the world of forensic science. Indeed, a quarter of the people exonerated by DNA testing were labeled as guilty, in part, through erroneous testimony from forensic scientists about hair and bite marks. Yet, DNA testing itself, an area of forensic science considered to be highly reliable, can also present problems in criminal cases.

The presumed reliability of DNA evidence for establishing the identity of someone who was at a crime scene has contributed to many criminal convictions. It has also contributed to several hundred exonerations when scientific evidence was used to free innocent people from prison. DNA evidence is widely regarded as providing definitive identifications and exclusions of suspects based on biological evidence at crime scenes and on the possessions of victims and suspects. However, there are risks that errors in the collection, testing, and use of DNA evidence may lead juries to erroneous conclusions when they hear testimony based on faulty evidence.

In a number of forensic science laboratories around the country, there have been scandals involving shoddy testing methods, unqualified lab technicians, and, worst of all, scientists who falsified test results to help prosecutors gain convictions. For example, an independent audit by retired FBI agents in 2010 found that the crime lab of the North Carolina State Bureau of Investigation had withheld or distorted evidence in more than 200 cases over a 16-year period. Previously, a key forensic scientist at the West Virginia state crime lab was found to have falsified test results in more than 100 cases. These are not the only examples of human problems that undercut the reliability of forensic science evidence presented to juries, including DNA test results. Fortunately, publicity about these scandals has led to increased efforts to provide oversight and standardization of procedures for crime labs. Hopefully, such efforts will reduce errors and misconduct.

Another significant challenge for the use of DNA evidence emerged in 2014 when a defense attorney successfully demonstrated her client’s innocence, despite the fact that his DNA was found at the crime scene on the body of a murder victim. A Silicon Valley millionaire was murdered in his San Jose, California, home during a violent home invasion and robbery. Testing of DNA evidence demonstrated the presence of biological material from a homeless man on the victim’s hand. Police assumed that such evidence would be present because the man was one of the robbers whom the victim tried to fend off with his hands. However, the defense attorney demonstrated that the homeless man was in the hospital at the time that the murder occurred. It turned out that Emergency Medical Technicians (EMTs) had placed an oxygen- monitoring probe on the homeless man’s hand when they found him unconscious in downtown San Jose and transported him to the hospital. Those same EMTs then went to the crime scene and placed the same oxygen-monitoring probe on the hand of the murder victim, thus transferring the homeless man’s DNA that was present in cells on the probe to the hand of the victim.

The demonstration that a DNA transfer had occurred from an innocent man to the body of a murder victim has opened opportunities for defense attorneys to challenge the procedures of medical and law enforcement personnel. Moreover, it invites those attorneys to argue before juries that the example of the San Jose case should be regarded as raising the risk of DNA transfers happening in other cases. Will this example cause jurors to be more skeptical about the reliability of DNA evidence? No one knows. The incident should cause EMTs and others at crime scenes to be more careful. In addition, it should send a message to prosecutors that it may be more difficult now to rely on trace DNA evidence alone as the basis for gaining a criminal conviction. They must make extra efforts to find additional kinds of evidence that can link a defendant to a crime.

Debate the Issue

Should the DNA evidence alone, taken from skin cells found at a crime scene or detected on a victim’s body, be sufficient basis to lead to criminal conviction? What if someone has a skin condition involving shedding skin cells, such as psoriasis, and a crime victim picked up those cells unknowingly from riding in a taxicab where those skin cells were left behind by the previous passenger? Might the San Jose case make it significantly more difficult for prosecutors to persuade jurors to rely on DNA evidence? If you were a prosecutor, what specific things would you communicate to the police about their crime scene investigations? What specific things would you communicate to jurors about DNA evidence?

Sources: M. Hansen, “Crime Labs under the Microscope after a String of Shoddy, Suspect and

Fraudulent Results,” American Bar Association Journal, September 1, 2013 ( www.abajournal.com); S.

Hsu, “FBI Admits Flaws in Hair Analysis over Decades,” Washington Post, April 18, 2015 (

www.washingtonpost.com); T. Kaplan, “Monte Serro Murder Case Casts Doubts on DNA Evidence,” San

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Jose Mercury News, June 28, 2014 ( www.mercurynews.com); W. Langley, “The Case against DNA,”

Telegraph, March 6, 2012 ( www.telegraph.com).

As we saw in the Brandon Vandenburg case in the chapter opener, a key issue for the defense is whether the accused will take the stand. The Fifth Amendment protection against self-incrimination means that the defendant is not required to testify. The Supreme Court has ruled that the prosecutor may not comment on, nor can the jury draw inferences from, the defendant’s decision not to speak in his or her own defense. The decision is not made lightly, because if the defendant does testify, the prosecution may cross-examine him or her. Cross-examination, or questioning by the opposing attorney, creates risks for the defendant. The prosecutor may question the defendant not only about the crime but also about his or her past, including past criminal convictions. In R. Kelly’s case, he never testified and thereby avoided cross-examination about his past sexual behavior and rumors about his attraction to teenage girls.

Presentation of Rebuttal Witnesses

When the defense’s case is complete, the prosecution may present witnesses whose statements are designed to discredit or counteract testimony presented on behalf of the defendant. If the prosecution brings rebuttal witnesses, the defense can question them and present new witnesses in rebuttal.

Closing Arguments by Each Side

When each side has completed its presentation of the evidence, the prosecution and defense make closing arguments to the jury. The attorneys review the evidence of the case for the jury, presenting interpretations of the evidence that favor their own side. The prosecutor may use the summation to show how individual pieces of evidence connect to form a basis for concluding that the defendant is guilty. The defense may set forth the applicable law and try to show that

the prosecution has not proved its case beyond a reasonable doubt, and

the testimony raised questions but did not provide answers.

Each side may remind the jury of its duty to remain unaffected by emotion and to evaluate the evidence impartially. Some attorneys nonetheless hope that the jurors will react emotionally to benefit their side.

Judge’s Instructions to the Jury

The jury decides the facts of the case, but the judge determines the law. Before the jurors depart for the jury room to decide the defendant’s fate, the judge instructs them on how the law should guide their decision. The judge may discuss basic legal principles such as proof beyond a reasonable doubt, the legal requirements necessary to show that the prosecution has proved all the elements of the crime, or the rights of the defendant. Specific aspects of

the law bearing on the decision, such as complicated court rulings on the nature of the insanity defense or the ways certain types of evidence have been gathered, may be included in the judge’s instructions. In complicated trials, the judge may spend an entire day instructing the jury.

Checkpoint

13. What are the stages in the trial process?

14. What are the kinds of evidence presented during a trial?

Stop and Analyze: Because the trial process is expensive, current government budget problems make it likely that some prosecutors will offer increasing numbers of attractive plea agreements to save money on trials. Should Americans be willing to devote sufficient resources to prosecutors and courts so that there are no compromises with respect to ensuring appropriate punishments for serious criminal offenses? Are there certain crimes for which you, as a prosecutor, would always insist on a trial if the defendant refused to admit guilt for the actual offense committed? If so, make a list of the “priority crimes” that you consider are always worth incurring the expense of a trial.

The concept of reasonable doubt (The standard used by a juror to decide if the prosecution has provided enough evidence for conviction.) lies at the heart of the jury system. The prosecution is not required to prove the guilt of the defendant beyond all doubt. Instead, if you as a juror are

satisfied to a moral certainty that this defendant … is guilty of any one of the crimes charged here, you may safely say that you have been convinced beyond a reasonable doubt. If your mind is wavering, or if you are uncertain … you have not been convinced beyond a reasonable doubt and must render a verdict of not guilty.(S. Phillips, 1977: 214)

The experience of listening to the judge may become an ordeal for the jurors, who must hear and understand perhaps two or three hours of instruction on the law and the evidence. The length, complexity, and legalistic content of jury instructions make them difficult for many jurors to comprehend (Daftary-Kapur, Dumas, and Penrod, 2010). Scholars have concluded that there is “a serious problem [with] … the jury’s documented difficulty in understanding legal instructions” (V. P. Hans and Vidmar, 2008: 228). There are also emerging concerns that jurors—as well as judges and other courtroom actors—can have their thinking and decision making affected by the high degree of stress they may feel about determining someone’s fate (M. K. Miller, Flores, and Dolezilek, 2007). Not surprisingly, this stress may be particularly powerful in murder cases, especially those concerning the death penalty (Antonio, 2006).

Decision by the Jury

After they have heard the case and received instructions from the judge, the jurors retire to a room where they have complete privacy. They elect a foreperson to run the meeting, and deliberations begin. Until now, the jurors have been passive observers of the trial, unable to question witnesses or discuss the case among themselves; now they can discuss the facts that have been presented. Throughout their deliberations the jurors may be sequestered— kept together day and night, away from the influences of newspapers and conversations with family and friends. If jurors are allowed to spend nights at home, they are ordered not to discuss the case with anyone. The jury may request that the judge reread to them portions of the instructions, ask for additional instructions, or hear portions of the transcript detailing what specific witnesses said.

If the jury becomes deadlocked and cannot reach a verdict, the trial ends with a hung jury and the prosecutor must decide whether to retry the case in front of a new jury. When a verdict is reached, the judge, prosecution, and defense reassemble in the courtroom to hear it. The prosecution or the defense may request that the jury be polled: Each member individually tells his or her vote in open court. This procedure presumably ensures that no juror has felt pressured to agree with the other jurors.

Checkpoint

15. What factors can make a jury’s decision different from that of a judge?

Stop and Analyze: If you were charged with tax evasion, would you prefer a trial in front of a judge or a jury? Why? Would you make a different choice if you were charged with injuring a small child when texting while driving?

11-3c Evaluating the Jury System

Individual jurors differ in their processing of information and interactions with others (Gunnell and Ceci, 2010). A classic study at the University of Chicago Law School found that, consistent with theories of group behavior, participation and influence in the jury process are related to social status. Men were found to be more active participants than were women, whites more active than minority members, and the better educated more active than those less educated (M. Lynch and Haney, 2015; Strodtbeck, James, and Hawkins, 1957).

This research points to the potential influence of status and social context on jury deliberations (Vidmar and Hans, 2007). More-recent research has found that social status still affects participation rates as jurors with higher levels of education and income are more active in discussions. However, racial effects are less evident in contemporary juries, as African American jurors were as active—or more so—than members of other groups. Additional differences were found that depended on the nature of the case. For example, there were higher rates of participation in murder cases. Geographic locations may also differ with respect to jury participation; for example, during trials in Los Angeles courts, Asian American women were less active in jury deliberations than were jurors from other demographic groups (Cornwell and Hans, 2011).

Jurors’ deliberations are also affected by the procedures they follow in evaluating the case. Much of the discussion in the jury room is not necessarily directly concerned with the testimony, but rather with trial procedures, opinions about the witnesses, and personal reminiscences (Bornstein and Greene, 2011; Strodtbeck, James, and Hawkins, 1957). Research finds that the first ballot outcomes still ultimately prevail in nearly all cases, although immediate votes are generally not taken when considering the most serious criminal charges (Sundby, 2010). Because of group pressure, only rarely does a single juror produce a hung jury. Some jurors may doubt their own views or go along with the others if everyone else disagrees with them. Additional studies have upheld the importance of group pressure on decision making (Sundby, 2010; Hastie, Penrod, and Pennington, 1983).

Judges have more experience with the justice process. When they are the decision makers in bench trials, they are more likely than juries to convict defendants based on evidence that researchers characterize as moderately strong (Eisenberg et al., 2005). As explained by premier jury researchers Valerie P. Hans and Neil Vidmar (2008: 227):

[T]he jury’s distinctive approach of common sense justice, and the judges’ greater willingness to convict based on the same evidence, best explain why juries and judges sometimes reach different conclusions. These juror values affect the verdicts primarily in trials in which the evidence is relatively evenly balanced and a verdict for either side could be justified.

By using research to gain an understanding of how jurors receive and understand information, it is hoped that court procedures could be adjusted in ways that will increase jurors’ understanding of evidence and legal concepts. As a result, it is presumed that the quality of juries’ decision making will improve, and thereby reduce the risk of error in jury verdicts. Read the Evidence-Based Practice and Policy feature to consider how research might help to make the jury process more effective.

Evidence-Based Practice and Policy

Improving the Effectiveness of Jury Instructions

Jurors face challenges in remembering and understanding information presented as evidence, especially when it is a long trial that lasts for many days. In addition, studies show that jurors have difficulty understanding the jury instructions read to them at the end of the trial by the judge (S. Gordon, 2013). As a result, many states have put effort into designing jury instructions that use plain language instead of confusing legal terms. Moreover, there is greater recognition that the length of jury instructions can exceed the attention span of jurors. Thus the extensive work on revising and delivering jury instructions seeks to address multiple concerns (Aaronson and Patterson, 2013).

Although there is not universal agreement on exactly what jury practices to implement based on research evidence, specific states have moved forward with reforms that seek to address the problems identified by research. Not all of the reforms have been verified by research and, indeed, some of the jury-reform efforts are considered by the states to be experiments to see if they improve jury processes.

For example, in 2011 the Michigan Supreme Court issued an order concerning jury reforms for courts to try during a three-year evaluation period. The instructions were based, in part, on scholars’ arguments and research findings about mechanisms that can improve jurors’ understanding of evidence (Thomas, 2011). The reforms included:

Providing pretrial jury instructions to jurors so that they could begin understanding their role and the relevant law before hearing evidence

Providing a copy of the jury instructions for each juror rather than the traditional method of giving only one copy to the entire jury

Permitting jurors to write down questions during the trial and then request that the judge consider posing these questions to specific witnesses, thus perhaps filling information gaps if the attorneys do not realize what else the jurors would like to know

Permitting jurors to ask questions about the final jury instructions delivered by the judge at the end of the trial

Jury trials serve an important function for determining the fates of individuals, especially in serious cases, such as murder, that are likely to draw the most significant punishments. Thus any evidence-based practices produced through research studies have the potential to reduce errors and improve the quality of jury decisions.

Implementing New Practices

Like most people, many judges are accustomed to doing things in ways that are familiar. Thus it can be difficult to convince judges to try new procedures. In this case, however, judges may be open to changes if they perceive that juries are not fully understanding jury instructions. What three suggestions would you make to encourage judges to examine and implement new approaches to jury instructions?

Sources: D. Aaronson and S. Patterson, “Modernizing Jury Instructions in the Age of Social Media,”

Criminal Justice (American Bar Association) 27 (2013): 4–10; S. Gordon, “Through the Eyes of Jurors:

The Use of Schemas in the Application of ‘Plain-Language’ Jury Instructions,” Hastings Law Review 64:

643–77; E. Ingriselli, “Mitigating Jurors’ Racial Biases: The Effects of Content and Timing of Jury

Instructions,” Yale Law Journal 124 (2015): 1693–1745; P. Thomas, “Mississippi Should Consider Jury

Reforms Similar to Those Adopted in Michigan,” MS Litigation Review and Commentary, July 21, 2011 (

www.mslitigationreview.com).

Check-It

5. Martin has been charged with homicide and has elected to have a jury trial. The trial is in the phase of jury selection, and his attorney has just issued a against a potential juror because the individual indicates he believes Martin must be guilty or he would not be on trial.

a. voir dire; preemptory challenge

b. venire; preemptory challenge

c. venire; challenge for cause

d. voir dire; challenge for cause

Check-It

6. Evidence that is not based on witness testimony but conveys information relevant to the crime, such as maps, X-rays, and photographs, is called

evidence.

a. direct

b. circumstantial

c. demonstrative

d. secondary

7. Research finds that the first ballot outcomes in jury trials ultimately prevail in nearly all cases.

a. True

b. False

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11-4 Appeals The imposition of a sentence does not mean that the defendant must serve it immediately. He or she typically has the right to appeal. Indigent offenders’ right to counsel continues through the first appeal (Heise, 2009). Some states have limited the right to appeal when defendants plead guilty. For nonviolent crimes, judges sometimes permit newly convicted offenders to remain free as the appeal proceeds.

An appeal (A request to a higher court that it review actions taken in a completed lower- court case.) is based on a claim that one or more errors of law or procedure were made during the investigation, arrest, or trial process (Place, 2013). Such claims usually assert that the trial judge made errors in courtroom rulings or in improperly admitting evidence the police had gathered in violation of some constitutional right. A defendant might base an appeal, for example, on the claim that the judge did not instruct the jury correctly or that a guilty plea was not made voluntarily. Appeals are based on questions of procedure, not on issues of the defendant’s guilt or innocence. The appellate court will not normally second- guess a jury. Instead it will check to make sure that the trial followed proper procedures (Shay, 2009). If the court finds significant errors in the trial, then the conviction is set aside. The defendant may be retried if the prosecutor decides to pursue the case again. Most criminal defendants must file an appeal shortly after trial to have an appellate court review the case; however, many states provide for an automatic appeal in death penalty cases. The quality of defense representation matters a great deal, because the appeal must usually meet short deadlines and carefully identify appropriate issues.

A case originating in a state court is usually appealed through that state’s judicial system. When a state case involves a federal constitutional question, however, a subsequent review may be sought in the federal courts. Even so, state courts decide almost four-fifths of all appeals.

The number of appeals in both the state and federal courts has increased during recent decades. What is the nature of these cases? A classic five-state study by Joy Chapper and Roger Hanson (1989) shows that

although a majority of appeals occur after trial convictions, about a quarter result from nontrial proceedings, such as guilty pleas and probation revocations;

homicides and other serious crimes against people account for more than 50 percent of appeals;

most appeals arise from cases in which the sentence is five years or less; and

(4) the issues raised at appeal tend to concern the introduction of evidence, the sufficiency of evidence, and jury instructions.

Most appeals do not succeed. In almost 80 percent of the cases Chapper and Hanson examined, the decision of the trial courts was affirmed. Most of the other decisions produced new trials or resentencing; only 9.4 percent of those whose convictions were overturned received acquittals on appeal. The appellate process rarely provides a ticket to freedom for someone convicted of a crime.

11-4a Habeas Corpus

After people use their avenues of appeal, they may pursue a writ of habeas corpus if they claim that their federal constitutional rights were violated during the lower-court processes (Primus, 2010). Known as “the great writ” from its traditional role in English law, a habeas corpus (A writ or judicial order requesting the release of a person being detained in a jail, prison, or mental hospital. If a judge finds the person is being held improperly, the writ may be granted and the person released or granted a new trial.) petition asks a judge to examine whether an individual is being properly detained in a jail, prison, or mental hospital (N. J. King and Hoffmann, 2010). If the detention is based on a rights violation or otherwise lacks a legal basis, then the judge will grant the writ of habeas corpus. A successful habeas corpus claim can lead to either an immediate release from government custody or an order for a new trial, which can require criminal defendants to remain in jail until the trial takes place. In the context of criminal justice, convicted offenders often claim that their imprisonment is improper because one of their constitutional rights was violated during the investigation or adjudication of their case. Statutes permit offenders convicted in both state and federal courts to pursue habeas corpus actions in the federal courts (N. J. King, Cheesman, and Ostrom, 2007). After first seeking favorable decisions by state appellate courts, convicted offenders can start their constitutional claims anew in the federal trial-level district courts and subsequently pursue their habeas cases in the federal circuit courts of appeal and the U.S. Supreme Court.

Only about 1 percent of habeas petitions succeed (Flango, 1994). In one study, less than one-half of one percent of noncapital habeas petitioners gained a favorable judicial decision, but more than 12 percent of habeas petitioners in death penalty cases demonstrated a rights violation (N. J. King, Cheesman, and Ostrom, 2007). One reason may be that an individual has no right to be represented by an attorney when pursuing a habeas corpus petition. Few offenders have sufficient knowledge of law and legal procedures to identify and present constitutional claims effectively in the federal courts. These challenges are especially difficult for offenders in noncapital cases. By contrast, legislatures have enacted statutes to provide extra resources for offenders on death row. Several statutes help to provide representation by lawyers in many capital cases, even though the U.S. Constitution does not give these offenders a constitutional right to counsel for their habeas petitions. In addition, judges may look more closely for rights violations in death penalty cases because the ultimate harm is so significant if an error goes undiscovered after review by the judges (C. E. Smith, 2015).

The appeals process provides an opportunity to correct errors that occurred in trial court proceedings. What are the advantages or disadvantages of having a group of appeals court judges decide a case together?

AP Images/Geoff Forester

In the late 1980s and early 1990s, the U.S. Supreme Court issued many decisions that made it more difficult for convicted offenders to file habeas corpus petitions (Hoffmann, 2006; C. E. Smith, 1995a). The Court created tougher procedural rules that are more difficult for convicted offenders to follow. The rules also unintentionally created some new problems for state attorneys general and federal trial courts that must now examine the procedural rules affecting cases rather than simply addressing the constitutional violations that the offender claims occurred (C. E. Smith, 1995c). In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, which placed additional restrictions on habeas corpus petitions. The statute was quickly approved by the U.S. Supreme Court. These reforms were based, in part, on a belief that prisoners’ cases were clogging the federal courts (C. E. Smith, 2016a). Ironically, habeas corpus petitions in the federal courts increased by 50 percent after the passage of the restrictive legislation (Scalia, 2002). By imposing strict filing deadlines for petitions, the legislation may have inadvertently focused more prisoners’ attention on the existence of habeas corpus and thereby encouraged them to move forward with petitions in order to meet the deadlines.

11-4b Evaluating the Appellate Process

The public seems to believe that many guilty offenders are being let off through the appellate process. Frustrated by the problems of crime, some conservatives have argued that opportunities for appeal should be limited. They claim that too many offenders delay imposition of their sentences and that others seek to evade punishment by filing appeals endlessly. This practice not only increases the workload of the courts but also jeopardizes the concept of the finality of the justice process. However, because 90 percent of accused people plead guilty, the percentage of cases that might be appealed successfully is relatively small.

Checkpoint

16. How does the appellate court’s job differ from that of the trial court?

17. What is a habeas corpus petition?

Stop and Analyze: Do criminal offenders have too many opportunities to challenge convictions? List two pros and two cons of having an appeals process as well as a habeas corpus process.

Consider what follows a defendant’s successful appeal, which is by no means a total or final victory. An appeal that results in reversal of the conviction normally means that the case is remanded to the lower court for a new trial. At this point the state must consider whether the procedural errors in the original trial can be overcome and whether the costs of bringing the defendant into court again are justified. Frequently, the prosecutor pursues the case again and gains a new, proper conviction of the defendant. In some cases, however, the appeal process generates new plea negotiations that produce a second conviction with a lesser sentence that reflects the reduced strength of the prosecutor’s case. Thus a successful appeal may place the defendant in a position to receive a more favorable offer from the prosecutor in exchange for a guilty plea.

The appeals process performs the important function of righting wrongs. It also helps to ensure consistency in the application of law by judges in different courts. Beyond that, its presence constantly influences the daily operations of the criminal justice system in that prosecutors and trial judges must consider how their decisions and actions might later be evaluated by a higher court.

A Question of Ethics

In 2016, a judge in Texas announced that he would not approve plea bargains, probation, or deferred adjudication for any defendant accused of threatening or putting a police officer in harm’s way. His order covered not only charges of assaulting an officer but also cases of evading arrest when ordered by an officer to stop. Critics voiced objections to the announcement. It appeared intended to guarantee harsher punishment for those particular crimes, effectively treating police officers as a special class of victims. Would it lead police officers to charge people more frequently with these offenses, even when not fully justified? Did it indicate that the judge would be biased when hearing evidence in cases with these charges? Was the elected judge merely pandering to the public as a means of gaining more support and campaign contributions for the next election?

Critical Thinking and Analysis

Is it ethical for a judge to make an announcement that defendants charged with certain crimes against a specific set of victims will receive harsher treatment than those who harm other victims in society? Does the judge’s announcement reduce the confidence of lawyers that the judge is committed to being equally fair to all defendants? If you were a legal scholar writing an article about the ethics of this situation, what arguments would you make and what conclusion would you draw about whether this was a permissible, ethical announcement?

Source: J. Lomax, “Galveston Judge Says He Won’t Consider Plea Bargains for Those Who Threaten or

Endanger Police Officers,” Texas Monthly, July 26, 2016 ( www.texasmonthly.com).

Check-It

9. An appeal is based on .

a. the desire to see that justice is rendered

b. a claim that one or more errors of law or procedure were made

c. a belief that the results of the trial were wrong

d. the need to ensure that no stone is left unturned

10. A petition asks a judge to examine whether an individual is being properly detained in a jail, prison, or mental hospital.

a. contra bonos mores

b. ex proprio motu

c. habeas corpus

d. lis alibi pendens

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11-5 Chapter Review

11-5a Summary

Describe the courtroom workgroup and how it functions

A court’s local legal culture, which defines the going rates of punishment for various offenses, significantly influences the outcomes in criminal cases.

Courtroom workgroups made up of judges, prosecutors, and defense attorneys who work together can smoothly and efficiently handle cases through cooperative plea bargaining processes.

Discuss how and why plea bargaining occurs

Most convictions are obtained through plea bargains, a process that exists because it fulfills the self-interest of prosecutors, judges, defense attorneys, and defendants.

Plea bargaining is facilitated by exchange relations between prosecutors and defense attorneys. In many courthouses, there is little actual bargaining, as outcomes are determined through the implicit- bargaining process of settling the facts and assessing the going rate of punishment according to the standards of the local legal culture.

The U.S. Supreme Court has endorsed plea bargaining and addressed legal issues concerning the voluntariness of pleas and the obligation of prosecutors and defendants to uphold agreements.

Plea bargaining has been criticized for pressuring defendants to surrender their rights and for reducing the sentences imposed on offenders.

Analyze why few cases go to trial and how jurors are chosen

Americans tend to presume that through the dramatic courtroom battle of prosecutors and defense attorneys, trials provide the best way to discover the truth about a criminal case.

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Less than 10 percent of cases go to trial, and half of those are typically bench trials in front of a judge, not jury trials.

Cases typically go to trial because they involve defendants who are wealthy enough to pay attorneys to fight to the very end, or they involve serious disagreements between the prosecutor and defense attorney about the provable facts and the appropriate punishment.

The U.S. Supreme Court has ruled that juries need not be made up of 12 members, and 12-member juries can, if permitted by state law, convict defendants by a supermajority vote instead of a unanimous vote. Juries serve vital functions for society by preventing arbitrary action by prosecutors and judges, educating citizens about the justice system, symbolizing the rule of law, and involving citizens from diverse segments of the community in judicial decision making.

The jury-selection process, especially in the formation of the jury pool and the exercise of peremptory challenges, often creates juries that do not fully represent all segments of a community.

Identify the stages of a criminal trial

The trial process consists of a series of steps: jury selection, opening statements, presentation of the prosecution’s evidence, presentation of the defense’s evidence, presentation of rebuttal witnesses, closing arguments, judge’s jury instructions, and the jury’s decision.

Rules of evidence dictate what kinds of information may be presented in court for consideration by the jury. The types of evidence are real evidence, demonstrative evidence, testimony, direct evidence, and circumstantial evidence.

Describe the basis for an appeal of a conviction

Convicted offenders can appeal. However, defendants who plead guilty, unlike those convicted through a trial, often have few grounds for an appeal.

Appeals focus on alleged errors of law or procedure in the investigation by police and prosecutors, or in the decisions by trial judges. Relatively few offenders win their appeals, and most of those simply gain an opportunity for a new trial, not release from jail or prison.

After convicted offenders have used all their appeals, they may file a habeas corpus petition to seek federal judicial review of claimed

constitutional rights violations in their cases. Very few petitions succeed.