The prosecution defense.

Chapter 8: The Prosecution, Defense, and Pretrial Activities

Actors and Procedures in the Courtroom

In criminal court, criminal attorneys approach cases following an advocacy model while practicing in an adversarial system.

What is an advocacy model?

• Advocacy model: Defendant and government are represented by advocates acting on their behalf.

What is an adversarial system?

• Adversarial system: A quality of the U.S. justice system in which prosecutors and defendants compete to reveal the truth. • Essentially, it is the Prosecutor vs. the Defense Attorneys. • Goal: Uncover the truth 2

The Prosecutor • Prosecutor: Represents the

government or the “people.”

• Federal Prosecutors

• U.S. Attorney General: Chief law enforcement officer in the government, head of the Department of Justice. • Advisor appointed by

president. • Notable U.S. Attorney Generals

include: Reverdy Johnson (1st

AG), Janet Reno (1st female AG), Alberto Gonzalez (1st

Hispanic AG), Eric Holder (1st

African American AG), and Loretta Lynch (1st African American woman AG)

• U.S. attorneys: Responsible for trying cases at the federal court level. • Also appointed by president,

supervised by AG. 3

Former U.S. Attorney Generals since 2009 (pictured above)

The Prosecutor

• Let’s first focus on the role of the prosecutor.

• Special prosecutors may be appointed to investigate an official’s wrongdoing. • Historically appointed by president.

• Type of work they do? An example includes the investigation of Russian interference in the 2016 presidential election.

State and Local Prosecutors

• Most states elect district attorneys (DAs).

• Prosecutors’ discretion encompasses who is charged and with what, whether to offer plea bargain, when or whether to drop charges, refiling charges (mistrial or hung jury). 4

The Prosecutor State and Local Prosecutors • Influential factors: Evidence, seriousness of crime, odds of winning, court

resources, wishes of the victim, family, or public.

• Exculpatory evidence: Evidence which clears some or all guilt during criminal proceedings.

• Legal and ethical concerns: Procedural missteps. Remember—they have a lot of discretion at their will. The court needs the prosecutor to act fairly to the defense.

• Discovery: Process of defense learning about prosecution’s evidence.

• Brady v. Maryland (1963): Prosecutorial misconduct includes: using unreliable informants, coercing witnesses, withholding information from defense, using questionable forensic science or scientists, accepting coerced confessions, and misleading jurors about the facts of the case.

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The Defense Attorney

• Now, let’s shift gears and focus on the role of the defense attorneys.

• Defense attorney: Advocates for a client’s constitutional rights.

• Often misunderstood positions, which typically, have a negative public perception. • Why? Because they are sometimes seen as defending the “criminals” • Reality: Defense attorneys are ensuring the constitutional rights of the defendants are protected.

• THIS IS IMPORTANT regardless of defendant’s guilt or innocence.

• Only a small percentage of defendants can afford to hire a private counsel. Private counsels are typically $$$$. • Majority rely on public defenders, or private attorneys appointed pro bono. • Pro bono: Legal representation at low or no cost.

• Public defenders are more effective than believed, but often overloaded and understaffed. 6

After the Arrest: Charging the Defendant

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1. First: crime is allegedly committed.

2. Second: an arrest is made.

3. Next: prosecuting attorney will decide whether or not to file charges. • Complaint: Document that initiates legal

proceedings.

4. Finally: the Grand Jury • Grand jury: prosecutor may decide to seek an

indictment from a grand jury. • Petit juries: Juries that determine guilt or

innocence in a single criminal trial.

After the Arrest: Charging the Defendant (The Grand Jury)

The Grand Jury • Grand juries: • Only hear evidence from prosecution. • Range from 16–23 jurors. • No determination of guilt. • Here, the grand jury will determine whether there is enough evidence

to proceed with a trial. • Time commitment: serve 1–12 months at state level and 18 at federal

level. • How do they operate? Grand juries operate in secret, have subpoena

power, unbound by rules of evidence.

• Reasons for secrecy: safety and security. • Can you think of why secrecy is needed? • For example, consider the impact of tampered evidence, outside pressures, outside

perspectives on the case, and ability of witnesses to testify in secret vs. publicized.

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Bail and Pretrial Events

• Bail Reform Act of 1966: Right to be released on bond or recognizance. • Recognizance: Agreeing to show up for court. • Pertains to a person’s “flight risk” (i.e., will the person go into hiding?). • Judge can DENY bail if they believe the person poses a risk flight risk, may

commit more crimes, or interfere with a witness (e.g., intimidation).

• Bail allows the arrested person (who is legally innocent) to remain free until the case is resolved.

Victims

• Victim rights vary by state, and may include: ü Notification of release. ü Pretrial release hearings (notification and/or participation.) ü Location monitoring of defendant.

**I want you to consider: why is important to inform the victim of the judge’s bail decision?

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Bail and Pretrial Events • Court may consider a variety of

reasons to grant/deny bail: • Type of offense. • Character of suspect. • Ties to the community. • Employment status. • Past record.

• How much does bail cost? It varies depending on the judge.

• Generally, it is expensive for the arrested person, which is why we see a growth in “Bail Bond” companies.

• Consider: is this fair to keep people in jail who can’t afford bail? What are the consequences?

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Bail and Pretrial Events: Preliminary Hearing and Arraignment Preliminary Hearing • Preliminary hearing: determines the extent

of evidence and if charges will be pressed. • Use less stringent rules of evidence to

establish probable cause.

Arraignment • Arraignment: Formal reading of charges in

front of defendant. • Pleas: guilty, not guilty, nolo contendere

(“no contest” to the charges).

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Plea Bargains • Plea bargain: Prosecutor offers lesser

charge or fewer charges in exchange for guilty plea.

• Judge must determine that the plea was entered voluntarily, knowingly, and intelligently. • Once a judge accepts the plea, the

sentence may be imposed immediately. • If sentencing was not agreed upon,

a sentencing hearing will be scheduled.

• I want you to ask yourself: Are plea bargains coercive? Do they undermine rights?

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Discovery, Motions, and Scheduling

• Motion to suppress: Request to disallow illegally obtained evidence.

• Motion in limine: Request to evaluate admissibility of evidence.

• Motion for a change of venue: Request for geographical change.

• Motion for discovery: Mandate for prosecution to provide defense with evidence.

• Motion for recusal: Request for removal of a trial judge or prosecutor.

• Motion for expenses of experts: Request for the state to pay for expenses related to expert testimony.

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Discovery, Motions, and Scheduling

Scheduling and the Right to a Speedy Trial • Trial management order: a full schedule created by the court and

court participants that designates what will happen and when as the parties work toward the trial date.

• Extensive scheduling is designed to meet the speedy trial deadline guarantee, which generally requires trial to be conducted within 6 months of arraignment. • If the prosecutor takes too long (> 6 months)? • Result: case is dismissed.

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Jury Selection • Venire: List of potential jurors

used to select jury. • Challenge to the array:

Argument that venire should be discharged due to the selection process.

• Voir dire: Questioning jurors under oath to uncover inappropriate jurors. • Challenge for cause:

Defense, prosecutor, or judge believes a juror cannot be unbiased.

• Peremptory challenge: Removing a prospective juror from the venire without legal justification.

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Jury Selection

• Sixth Amendment to the Constitution requires impartial jury from area where crime was committed. • SCOTUS interprets this as a prohibition on systematic exclusion. • In other words, SCOTUS says you cannot systematically exclude

populations (e.g., female, Black, Hispanic who were historically excluded).

• Defense or prosecution may file for sequestration of witnesses. • Witnesses not allowed in the courtroom during other witness

testimonies. • Benefits? Can help assist in the fact-finding process, and reduce

unnecessary/unintentional pressures on the witnesses.

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Jury Selection

• Why is a jury so important to the court process?

• Consider the impact of the jury’s decision on a person’s life.

• If you are interested in learning more about what (potentially) happens during a jury meeting, you can watch the classic film, 12 Angry Men.

• Here is the trailer: https://www.youtube.com/watc h?v=TEN-2uTi2c0

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Diversity and Pretrial Events

Gender, Bail, Plea Bargaining, and Jurors: BAIL • Mixed research results: women are treated less harshly or equally harshly

to men. • 1970s-1980s research: women and men treated the same on bail decisions • 1990s research: women had more leniency than men, and women more likely to

be released prior to trial. • Also, research noted that White women, White men, and Black women = more likely to be

released on bail compared to Black men. • Black men also had higher amount of bail required than other race and gender groups.

Gender, Bail, Plea Bargaining, and Jurors: PLEA BARGAINING • Mixed research results: women may be advantaged in plea deals,

disadvantaged, or equally treated.

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Diversity and Pretrial Events

Female Jurors • Hoyt v. Florida (1961): Upheld all-male juries.

• Hoyt decision said it was fair to have an all-male jury without the need of gender diversity in a jury.

• Taylor v. Louisiana (1975): Struck down Hoyt. New ruling: guaranteed sex equality in jury service.

• In practice? Women jurors were still removed from juries based on peremptory challenges (i.e., defendant or lawyer’s objection to the juror without needed reasons/justifications).

• J.E.B. v. Alabama ex rel T.B. (1994): Unconstitutional to use peremptory strikes to discriminate.

• Now, can’t discriminate based on sex alone to remove women from the jury. • Why? Doing so would violate the equal protection rights of the potential juror.

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Diversity and Pretrial Events

Race, Hispanic Origin, and Bail • Blacks are less likely to be offered bail

or reduced charges in plea bargains. • Hispanics are less like to be offered

bail or lenient plea bargains in drug- related crimes.

Black Jurors • Civil Rights Act of 1875: Federally

prohibited racial exclusion from jury selection.

• Strauder v. West Virginia (1880): Found excluding Black persons from juries unconstitutional.

• Norris v. Alabama (1935) and Batson v. Kentucky (1986).

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Diversity and Pretrial Events Hispanic Jurors • Hernandez v. Texas (1954). Hernandez argued that he was denied an impartial jury

because of the lack of ethnic minorities on the panel. • Consider the impact of having no ethnic minorities on a panel. Would this be fair or unfair?

American Indian/Alaskan Native Jurors • If “unassimilated” they couldn’t serve on federal juries until 1924.

• Consider the definition of “unassimilated”. In the past, American Indians who retained tribal membership were denied the ability to serve on a jury. However, that has changed in today’s time.

Asian Jurors • Excluded from naturalization in the 1870s.

• In particular, Chinese immigrants were denied naturalization (however, the Anti-immigrant stance also applied to Japanese and other Asian immigrants).

• Consider the impact of not being able to gain U.S. citizenship (with citizenship, you are able to serve on a jury).

LGBTQ Jurors • Never banned from serving, but also not legally protected from peremptory strikes on a

federal level. • Very recent ruling (in 2020). Jurors cannot be dismissed based on their sexual orientation.

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Technology and Pretrial Events

Bail

• Technology has made it easier to: üPost bail online quickly

with e-forms and credit cards.

üBond companies can easily follow up with those on bail in various ways.

üGPS tracking helps check for risky behavior.

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Technology and Pretrial Events Courtroom

• Technology has made it easier to: • File paperwork and share

documents. • Meet remotely. • Record real-time transcripts.

• Courtroom Steno Machine: https://www.youtube.com/w atch?v=ZAkkTtsPKOA

• Utilize video displays: to show exhibits, present complex data, or air video testimony (controversial).

• Live coverage through television or tweets.

• Recently: Zoom hearings due to COVID-19.

• New complexities in rising number of cases that involve interpreting emails/texts.

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