CCJS 100 – Criminal Act Assignment - DUE FRIDAY

Introduction to Criminal Justice

Section 5.1: State and Federal Courts

Prepared by Adam J. McKee

1

A Complex System The U.S. court system is very complex due to dual federalism .

Ea ch le ve l o f go ve rn m e n t —s t a t e , lo ca l, a n d fe d e ra l—h a s it s o wn co u rt s .

Pe rh a p s t h e e a s ie s t crim in a l co u rt s ys t e m t o u n d e rs t a n d is t h e fe d e ra l s ys t e m .

2

Who Hears a Case? When an act violates a federal criminal law, the suspect is tried in federal court.

When a suspect violates a state law, it can be tried at the local or state level, depending on the state.

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Many Courts, Many Differences No two of the fifty state courts are exactly alike.

The federal government operates courts within each of the fifty states.

The vast majority of criminal cases are tried in state courts.

Most state court systems and the federal court system can be described as hierarchical or “pyramid shaped.”

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Lower Courts At the bottom of the court hierarchy are the lower courts .

Th e m a jo rit y o f ca s e s h e a rd b y t h e s e co u rt s a re t ra ffic vio la t io n s a n d m is d e m e a n o r ca s e s .

Th e n a m e s va ry wid e ly, d e p e n d in g o n t h e s t a t e : Mu n icip a l co u rt s , p o lice co u rt s , a n d t ra ffic co u rt s a re co m m o n e xa m p le s .

Th e re a re a ls o m a n y s p e cia lize d co u rt s a t t h is le ve l: Ju ve n ile co u rt s o ft e n e xis t a t t h is le ve l.

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Duties of the Lower Courts These courts tend to hear relatively minor matters.

Many can, however, sentence violators to jail and impose large fines.

Some of these courts also deal with preliminary matters in criminal cases, such as conducting arraignments and preliminary hearings.

These felony cases are subsequently transferred to a higher court for trial.

Many people —especially those appearing in them —are critical of the “assembly line” justice offered by many municipal courts.

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Courts of General Jurisdiction While the lower courts can only hear nonserious matters, this level of the court system can hear felony cases.

Courts of general jurisdiction a re t h e t ria l co u rt s o f re co rd o f t h e s t a t e co u rt s ys t e m s .

Ge n e ra lly, t h e s e co u rt s o p e ra t e m o re fo rm a lly a n d p ro fe s s io n a lly t h a n t h e lo we r co u rt s .

Th e re a re fe we r o f t h e m .

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What Are They Called? The name varies depending on the state; in some states, they are called district courts, and in others, they are called circuit courts.

This can be very confusing in states that are the reverse of the federal system (where district courts are trial courts and circuit courts are appellate courts).

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Work Load Only a small fraction of cases filed by prosecutors ever go to full trial in these courts.

The vast majority end in a plea bargain.

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Courts of Appellate Jurisdiction When a party is dissatisfied with the results of a trial, then they can appeal to a higher court.

Appellate courts m o s t ly h e a r a p p e a ls ca s e s , a n d a re h igh e r u p in t h e co u rt h ie ra rch y.

Th e n u m b e r o f le ve ls o f a p p e a ls co u rt s d e p e n d s la rge ly o n t h e p o p u la t io n o f t h e s t a t e .

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State to State Differences In states with relatively small populations, the losing party at trial can appeal directly to the state’s highest court, the state supreme court .

In larger states, there is usually an intermediate appeals court that lightens the workload of the state supreme court .

The supreme courts usually have a broad discretion in deciding whether to hear a case or not .

The judges are free in many circumstances to decide what cases are important, and to only hear those .

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The Federal Court System Federal courts are organized along very similar lines to state courts, although the more general subject matter jurisdiction of federal courts makes them more streamlined that many state systems .

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U.S. District Courts In the hierarchy of courts, the trial courts of general jurisdiction are always near the bottom.

At the federal level, these workhorses of the court system are the 94 U.S. District Courts .

Eve ry s t a t e in t h e Un it e d St a t e s h a s a t le a s t o n e d is t rict co u rt , a n d s o m e s t a t e s h a ve s e ve ra l.

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U.S. Courts of Appeals Above the federal district courts in the federal court hierarchy are the U.S. Courts of Appeal .

Th e y s e rve m o s t ly t o h e a r a p p e a ls fro m t h e d is t rict co u rt s .

Ap p e a ls ju d ge s d o n o t s it a lo n e wh e n d e cid in g ca s e s , b u t ra t h e r s it in p a n e ls o f t h re e ju d ge s .

Ra r e a n d im p o rt a n t ca s e s a re s o m e t im e s h e a rd en banc , m e a n in g a ll o f t h e ju d ge s in th a t cir cu it h e a r th e ca s e to ge t h e r .

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U.S. Supreme Court The U.S. Supreme Court crowns the hierarchy of United States Courts.

It hears appeals that come out of both federal and state courts.

Considering there are only nine justices, the workload of the Supreme Court is very heavy.

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What Cases are Heard? The Supreme Court is different than lower level courts in that they exercise certiorari power.

Th is m e a n s t h a t t h e ju s t ice s ge t t o d e cid e wh ich ca s e s t o re vie w a n d wh ich t o p a s s o ve r.

Th e ca s e s t h a t t h e y d o s e le ct t e n d t o h a ve ve ry b ro a d n a t io n a l im p lica t io n s .

Be ca u s e t h e Su p re m e Co u r t fu n ct io n s m o s t ly a s a co u rt o f a p p e a ls , m o s t o f t h e ca s e s t h e y d e cid e re s u lt in a lo we r co u rt ’s d e cis io n e it h e r b e in g affirmed o r reversed .

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Problems with the Courts One of the biggest problems facing the courts today is the high volume of cases.

For example, in 2013, combined filings for civil cases and criminal defendants in the U.S. district courts totaled 363,914.

According to the Court Statistics Project, o ve r 10.6 m illio n ca s e s we re p ro ce s s e d in s t a t e t ria l co u rt s in 2009 (t h e la s t ye a r fo r wh ich d a t a is a va ila b le ).

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The Impact of “Get Tough” Laws The tough drug sanctions of the recent past caused a steadily increasing caseload for the courts .

A majority of state courts are perpetually behind on hearing cases.

Accordingly, there has been an increasing interest on both the state and federal level with how to reduce caseloads and speed up the flow of cases.

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Perhaps t h e m o s t p o p u la r e ffo rt t o re d u ce ca s e lo a d s h a s b e e n t h e a d ve n t o f drug courts .

A b ig d iffe r e n ce b e t we e n d ru g co u rt s a n d re gu la r co u rt s is t h a t d ru g co u rt s t e n d to s e n t e n ce n o n vio le n t , firs t -tim e o ffe n d e rs t o d ru g t re a t m e n t ra t h e r t h a n p ro b a t io n o r p ris o n .

Th e m a in p u rp o s e s o f d ru g co u rt s a re t o re d u ce re cid ivis m a n d re d u ce th e ca s e lo a d o f t h e re gu la r co u rt s .

Th e e m p irica l re s e a rch s u gge s t s t h a t d ru g co u r t s a re m o r e e ffe ct ive a t r e d u cin g r e cid ivis m t h a n t ra d it io n a l p ro b a t io n o r p r is o n .

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Reducing Caseloads

Speeding Up the Courts When there are too many cases being processed by the courts, the speed at which cases can be processes slows down, sometimes dramatically .

This is especially problematic in criminal courts where defendants have a constitutional guarantee of a speedy trial .

For this and other reasons, the public is dissatisfied when case resolution becomes a long, drawn -out process .

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The Speedy Trial Act of 1974 At the federal level, there has been legislation to force the courts to run faster .

The Speedy Trial Act of 1974 sets time standards for two different stages in the federal progression .

The law stipulates that the prosecutor has a maximum of thirty days from the time of arrest to arraign a suspect, and an additional seventy days from the indictment to the trial .

Every state has followed the federal example by enacting some form of speedy trial law . 21

The Role of Judges The many responsibilities of the trial court judge extend throughout the entire criminal court process .

From the time of an arrest, judges make critical decisions that have a deep impact on the cases and lives of those accused of crimes .

Because they must evaluate probable cause and issue search and arrest warrants, judges are often involved in criminal cases before an arrest takes place.

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Functions of Trial Judges Once the offender is arrested, the judge must decide if bail is to be granted, the amount of bail, rule on pretrial motions made by both the prosecution and the defense, hear pleas, referee trials, and pass sentences .

At all stages of the process, the judge must perform a balancing act, protecting the rights of the accused while also protecting the best interest of the public .

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Functions of Appellate Judges Appeals court judges have different responsibilities than trial judges .

While trial judges are mostly referees in the adversarial battle between prosecution and defense, appeals court judges serve as legal scholars by researching, clarifying, and writing opinions on legal issues.

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Federal Judges Federal judges tend to be the cream of the crop .

They tend to come from families with a long history of public service and attend the finest law schools in the world .

Some critics argue that those families are also wealthy, and that federal judges are selected from the social and cultural elite and that the process is unfair .

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State Judges and Politics State level judges tend to be drawn heavily from whichever political party dominates that particular state .

There are a variety of ways that judges are selected, depending on state law .

Some states have partisan elections, meaning that candidates for judgeships run under the banner of a particular political party .

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Other Methods of Selecting Judges In other states, judges are elected, but they run as nonpartisan candidates, meaning that they state no allegiance to a particular political party.

Some states use an appointment system, where the governor of the state appoints judges.

Still other states select judges by legislative appointment.

Some states, such as Missouri, use a merit system.

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Judicial Decision Making The very nature of being a judge requires making important decisions .

Judges make decisions that have an enormous impact on the lives of defendants .

Trial court judges are often called upon to make decisions in an instant, while appeals court judges have more time to ponder weighty issues and seek input from colleagues and staff .

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Stare Decisis Because of the doctrine of stare decisis , t h e d e cis io n s o f ju d ge s a r e t e m p e r e d b y t h e e xis t in g le ga l la n d s ca p e .

Th a t is , m o s t ju d ge s fo llo w p re ce d e n t wh e n it is a va ila b le , a n d t ry t o u s e th e le ga l lo gic o f p a s t ca s e s t o gu id e t h e m wh e n n o ve l le ga l q u e s t io n s a ris e .

Po litica l va lu e s o ft e n co m e in t o p la y, a lth o u gh t h e s e a r e n o t a s re a d ily re co gn ize d a s is le ga l t ra d it io n .

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Judicial Misconduct Judges have an awesome amount of power, and this power sometimes corrupts .

Judges, like other criminal justice professionals, sometimes act in unethical and illegal ways.

These inappropriate activities undermine the public confidence in the judiciary and create injustice .

Each state has some sort of mechanism in place to deal with unethical conduct by judges .

At the federal level, judges can only be removed by impeachment by the Senate

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Judicial Independence The founding fathers decided early on that the courts should be independent of the other branches of government .

There are several reasons for this separation of powers . Perhaps the most important reason for judicial independence is that it allows judges to preside over cases in a just and impartial way.

Another important reason is that the courts serve as a check on the power of the executive and legislative branches .

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Influence on the Judiciary It is a mistake, however, to view the judiciary as completely independent.

The other branches of government have the ability to influence the judiciary.

The executive often has the power of appointment over judges.

The legislative branch has the power of the purse, controlling the budget of the courts.

These powers, while significant, are limited.

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Judicial Insulation Federal judges, for example, are appointed for life tenure .

That means that once appointed by the executive, they cannot be fired .

The founding fathers formed government in this way because they understood that a judge fearful of losing his job could not be a neutral and detached magistrate that is willing to rule against the legislative or the executive .

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Juveniles and the Courts Just as with the adult criminal justice system, the courts powerfully influence the juvenile justice system.

This is true at both the juvenile court level, and at the appellate level.

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Juvenile Courts Perhaps the most important member of the juvenile justice system is the juvenile court judge .

Juvenile judges have the role of a traditional judge, but this role is greatly expanded when a judge presides over a juvenile court .

In many jurisdictions, the juvenile judge oversees not only the operations of the juvenile court, but juvenile probation departments as well .

In many small jurisdictions, juvenile court judges are responsible for the fiscal management of the courts as well as probation departments .

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Personal Characteristics The beliefs, attitudes, and behaviors of juvenile judges can have an incredible impact on other criminal justice agencies in particular, and the entire community in general .

For example, judges that do a poor job of dealing with juvenile delinquency in the schools runs the risk of creating a disruptive and lawless learning environment .

At the other end of the spectrum, judges that are overly punitive in their decisions run the risk of violating the doctrine of parens patriae .

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Conflicting Roles Much of what juvenile court judges do can be described as a balancing act.

Juvenile judges must ensure that all processes and decisionmaking are carried out in a fair and unbiased manner .

They must make sure that all decisions balance the best interests of the juvenile with the best interests of the victim and community .

In addition, they must ensure that the constitutional rights of all parties are upheld .

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The Supreme Court and Juveniles Historically, juvenile proceedings rarely made it to the U.S. Supreme Court.

Starting with the Warren court in the 1960s, however, the Supreme Court handed down several cases that dramatically altered the structure and function of the juvenile justice system.

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Kent v. United States(1966) Held that juveniles must be afforded due process rights in court proceedings.

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In re Gault (1967) Held that juveniles accused of crimes must be afforded many of the same due process rights as adults.

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Breed v. Jones(1975) Held that finding a child delinquent in a juvenile court then trying the child in adult court amounts to double jeopardy.

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Schall v. Martin(1984) Held that the preventive detention of a juvenile does not necessarily violate due process.

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Doe v. Renfrow(1981) Upheld a lower court decision that a search of schoolchildren for narcotics by a drug dog is not rights violation.

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New Jersey v. TLO(1985) Set the evidentiary standard for searches of students by school officials at reasonable suspicion.

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Qutb v. Strauss (1993) Held that curfew laws were constitutional because they are designed to protect the community.

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Introduction to Criminal Justice

Section 5.2: The Prosecution and Defense

Prepared by Adam J. McKee

1

An Adversarial Process Recall that the United States has an adversarial legal system .

This means that all criminal matters decided by the courts are a contest between a lawyer for the state and (in most cases) a lawyer for the defense .

These "adversaries" are ethically required to do their utmost to prevail in court .

2

Prosecutors Prosecutors at the federal level prosecute different types of crimes than their state court counterparts.

Regardless of the level of government, it is the prosecutor's job to present the government's case against criminal defendants.

The purpose of this is to demonstrate guilt to the finder of fact.

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Conflicting Duties? Prosecutors often work with law enforcement personnel to ensure that evidence is in order prior to launching criminal proceedings .

It is also among the duties of the prosecutor to see that justice is done ; this can mean sharing evidence that tends to prove the defendant's guilt .

4

U.S. Attorneys In federal courts, prosecutors are known as United States Attorneys .

All 94 fe d e ra l co u rt d is t rict s in t h e Un it e d St a t e s h a ve a U.S. At t o rn e y.

Th e y a re a p p o in t e d b y t h e Pre s id e n t , a n d fu n ct io n m a in ly a s a d m in is t ra t o rs .

Assistant U.S. Attorneys u s u a lly co n d u ct a ct u a l p ro s e cu t io n s .

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What They Go After The almost 2,000 assistant federal prosecutors investigate violations of federal laws, focusing on matters beyond the scope of local law enforcement operations, such as

● public corruption ● large scale drug trafficking ● white collar crime

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District Attorneys At the state and local level of government, prosecutors are usually called District Attorneys (D.A.).

So m e ju ris d ict io n s , s u ch a s Illin o is , ca ll t h e s e go ve r n m e n t la wye r s St a te 's At t o rn e ys .

Dis t rict At t o rn e ys h a ve a la rge a m o u n t o f d is cre t io n .

Officia l a ct io n fo r p ro s e cu t o ria l m is co n d u ct is ra re , a n d d iffe r e n t ju ris d ict io n s d e a l wit h it in d iffe r e n t wa ys .

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City Attorneys Some jurisdictions allow for the prosecution of violations and some misdemeanors at the local level.

These City Attorneys prosecute minor offenses that often only result in fines such as traffic offenses, nuisance offenses, and violations involving alcohol .

Some jurisdictions allow these attorneys to prosecute misdemeanor cases that can result in jail time .

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Independent Counsels Independent counsels are lawyers that serve as prosecutors in cases where high -level government officials are charged with misconduct .

The reason they exist is to prevent the abuse of government power .

The U.S. attorney general has the power to appoint an independent counsel when he or she determines that there is sufficient evidence to warrant the investigation of high -ranking government officials, including members of the United States Congress.

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Prosecutorial Discretion Prosecutors arguably have the most discretion of any actor in the criminal justice system .

They make decisions as to who to charge, what to charge them with, when charges should be dropped, and whether or not to plea bargain .

While the discretion of prosecutors is nearly unfettered, it is most commonly used in three main areas: the discretionary decisions to file charges, dismiss charges, and offer plea bargains .

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Charging While police initially inform criminal defendants of the charges against them, it is up to the prosecutor to decide what the exact formal charges will be.

First, however, the prosecutor must make the decision to prosecute persons accused by the police, or to not prosecute them.

The decision to prosecute is linked to several factors.

Perhaps the most important factor is the strength of the evidence against the accused.

Ob vio u s ly, p ro s e cu t o rs d o n o t like t o m o ve fo rwa rd wit h ca s e s t h e y ca n n o t win . 11

Other Factors The seriousness of the offense is another important factor .

Offenses that are more serious are more likely to be prosecuted .

Other factors are resource based .

The prosecutor must consider both prosecutorial resources and the size of the court’s docket .

Community resources are also important : Prosecutors can only seek alternatives to prosecution and prison when those resources are available .

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Defendant Characteristics The characteristics of the defendant are important as well .

The defendant’s degree of culpability and criminal history factor into the equation, influencing the prosecutor to prosecute more aggressively and to seek harsher punishments .

Cooperation with the police and a willingness to help prosecute others influence the prosecutor to seek lighter sentences .

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Dropping Charges Once charges are filed by a prosecutor, there is still a wide discretion as to how to move the case forward .

The prosecutor can decide to go forward to trial with the case.

An alternative is to make a plea bargain where the defendant is offered a lighter sentence for a guilty plea .

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nolle prosequi The prosecutor can also enter a nolle prosequi .

A n o lle p ro s e q u i is a fo rm a l s t a t e m e n t b y a p ro s e cu t o r s t a t in g t h a t a ca s e will b e d ro p p e d .

Pro s e cu t o r s ca n e n t e r a n o lle p ro s e q u i (o ft e n a b b re via t e d a s nol. pros.) wh e n t h e ca s e is d e e m e d t rivia l, e vid e n ce is d e t e rm in e d b y t h e co u rt t o b e in a d m is s ib le , t h e r e is in s u fficie n t e vid e n ce , a n d wh e n it is d is co ve re d th a t fa ls e a ccu s a t io n s we re m a d e .

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Plea Bargains Prosecutors have a great deal of discretion when negotiating plea bargains wit h t h e d e fe n s e .

A p le a b a rga in is a n a gre e m e n t in wh ich t h e p ro s e cu t o r p e rm it s t h e d e fe n d a n t t o p le a d gu ilt y in e xch a n ge fo r co n ce s s io n s s u ch a s re d u ce d ch a rge s o r le n ie n t s e n t e n ce re co m m e n d a t io n s .

Bo t h t h e p ro s e cu t io n a n d t h e d e fe n s e ca n b e n e fit fro m p le a b a rga in s .

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Plea Bargain Benefits For the defense, the obvious benefit is a reduced sentence .

For the prosecution, plea bargaining is a matter of conserving resources, both the prosecutor’s resources and the courts .

If plea bargaining did not occur, the work of the courts would slowly stop .

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The Defense The role of the defense attorney is to champion the defense at every stage adversarial legal process .

This role is critical to maintaining fairness in the criminal justice system .

Many different tasks are the responsibility of the defense attorney .

Defense attorneys protect the rights of the accused in pretrial processes such as police interrogations and lineups .

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Defense Attorney Roles Defense attorneys must work with prosecutors and determine the strength of the cases against their clients .

They must represent their clients at bail hearings, suppression hearings, and other pretrial matters .

Defense attorneys must devise a defense strategy that can include plea bargaining or going on to trial .

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After Trial When cases do go on to trial, defense attorneys represent their clients in court .

When clients are found guilty, defense attorneys represent their clients at sentencing hearings, arguing against the measures proposed by the prosecution .

Defense attorneys also represent their clients in appeals when the results of a trial are unfavorable .

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Types of Defense While there are a staggering number of variations when specific details are examined, there are three basic ways that criminal defendants can defend themselves in court :

1. hire their own private attorney 2. utilize legal services provided by the government for the poor 3. represent themselves

Because self-representation is a notoriously bad idea, most criminal defendants choose one of the first two options .

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Legal Services for the Indigent In the criminal justice system, most criminal defendants cannot afford to hire a private lawyer to represent them.

Historically, this meant that only the wealthy could have lawyers to represent them in many state courts.

In 1963, this situation changed.

It was in this year that the Supreme Court handed down the famous Gideon v. Wainwright d e cis io n .

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Gideon v. Wainwright In this case, the court held that an indigent defendant charged in state courts with a felony offense had a due process right to be represented by counsel .

Later, in a 1972 case styled Argersinger v. Hamlin , th e co u rt r e fin e d t h is ru le b y e xt e n d in g t h e righ t t o co u rt-a p p o in t e d co u n s e l wh e n e ve r t h e re wa s a d a n ge r o f t h e d e fe n d a n t b e in g s e n t e n ce d t o p ris o n .

Th is re m a in s t h e s t a n d a rd t o d a y.

Th o s e a ccu s e d o f m in o r o ffe n s e s t h a t re s u lt o n ly in a fin e , s u ch a s t ra ffic vio la t io n s , a re n o t e n t it le d t o s t a t e -fu n d e d a t t o rn e ys .

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What Does “Indigent” Mean? The term indigent can be misleading .

The term poor u s u a lly d e fin e it , b u t m o s t s t a t e s d o n o t re q u ir e t h a t a d e fe n d a n t b e wit h o u t a n y m e a n s a t a ll t o q u a lify fo r a p p o in t e d co u n s e l.

It is h a rd t o b e s p e cific a b o u t th e s e re q u ir e m e n t s b e ca u s e e ve r y s t a t e m a ke s it s o wn ru le s .

Th e q u a lifica t io n s a re s u fficie n tly b ro a d in s co p e t h a t m o r e t h a n 80% o f crim in a l d e fe n d a n t s a ccu s e d o f a fe lo n y u s e a p p o in t e d co u n s e l fo r t h e ir d e fe n s e .

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Controversies Many advocates believe that free legal defense services are underfunded in the United States because the concept of providing tax -funded legal services to “criminals” is politically unpopular .

Many believe that this state of affairs causes unacceptably high caseloads, which forces attorneys to recommend actions that are not in the best interest of the client, such as accepting plea bargains .

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Retained Counsel The typical private defense attorney has several years’ experience working with criminal cases as a government employee, such as with a prosecutor’s office or a public defender’s office .

Veteran criminal defense attorneys can set very high fees.

The amount of fees charged is also related to the complexity of the case and whether the attorney has to appear at trial .

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Self-representation There is an old adage in the legal community that “a lawyer that represents himself in court has a fool for a client .”

The very nature of our adversarial system makes it very difficult to mount an effective legal defense for one’s self.

It is nearly impossible, for example, to cross-examine yourself without looking foolish .

If this is true for legal professionals, then it is even more so for non -lawyers .

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Faretta v. California Despite the lack of efficacy, the Supreme Court determined in Faretta v. California (1975) t h a t t h e p e o p le h a ve a righ t t o s e lf-re p re s e n t a t io n in crim in a l ca s e s .

Th e re a re a fe w re s t rict io n s p la ce d o n t h e s e in d ivid u a ls .

Th e ke y le ga l re q u ire m e n t is t h a t t h e d e fe n d a n t s knowingly and voluntarily wa ive t h e righ t t o co u n s e l.

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Defendant’s Rights Woven into the very fabric of our legal system is the idea that the process should be fair to everyone .

Fairness often means that the legal system has to treat every individual the same way, regardless of race, creed, religion, sex, and so forth .

This idea that everybody has to be treated by the government in the same, fair way is summed up in the term procedural due process .

Th is id e a is e n s h rin e d in th e Bill o f Righ t s , a n d ca n b e fo u n d in b o t h t h e Fift h a n d t h e Fo u rt e e n t h Am e n d m e n t s .

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Criticisms of Defendant’s Rights Some critics argue that these measures serve to protect criminals and should accordingly be done away with.

This is not a very carefully considered position.

Un d e r o u r le ga l s ys t e m , t h o s e a ccu s e d o f crim e s a re a s s u m e d in n o ce n t u n t il p ro ve n gu ilt y in a co u rt o f la w.

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The Price of Freedom? Most American’s are not willing to accept such blatant abuses of human rights, and so our constitution protects us from them by design.

There is just no way to protect the rights of everyday citizens without protecting the rights of criminals along with them until the criminals can be convicted in a court of law.

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Why We Need These Rights If these rights were not protected for all people , then every citizen, regardless of any wrongdoing, would be subject to searches of their persons, vehicles, and houses .

They would be subject to arrest, confinement, and questioning under duress or even torture .

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Introduction to Criminal Justice

Section 5.3: Pretrial Process

Prepared by Adam J. McKee

1

The Myth Television legal dramas have trained the American people to understand that all of the important legal maneuverings in a criminal case takes place in a courtroom in front of a judge and jury .

This conception can safely be included among the myths of criminal justice .

2

The Truth Consider that over 90% of criminal charges result in a guilty plea and never go to trial .

Most of these are the result of a plea bargain agreement hammered out between the prosecution (the state) and the defense .

The fact is that many important legal steps are taken prior to trial .

These steps make for a functional criminal justice system but are not good drama, so they never get the spotlight on television .

3

Hired v. Appointed Counsel Counsel, either hired by the defendant or appointed by the court, represents almost every criminal defendant in both state and federal courts .

Defendants representing themselves are far more common with misdemeanors .

There is a common belief that appointed lawyers do not do as good a job defending their clients as do privately hired attorneys .

4

How Good of a Job? In a report issued by the Bureau of Justice Statistics it was found that there was very little difference between how counsel was obtained on the verdict of guilty .

Among those receiving a guilty verdict, a higher percentage of defendants with appointed counsel were sentenced to incarceration .

The rate of entering a guilty plea was higher with appointed counsel : About 75% of inmates with appointed counsel pleaded guilty, while around 66% of those with hired counsel pleaded guilty .

5

Counsel in the Federal Courts The responsibility for appointing counsel in federal criminal proceedings for those unable to bear the cost of representation has historically rested in the federal judiciary .

Before the enactment of the Criminal Justice Act (CJA), h o we ve r, t h e re wa s n o a u th o rit y t o co m p e n s a t e a p p o in t e d co u n s e l fo r t h e ir s e r vice s o r litiga tio n e xp e n s e s , a n d fe d e ra l ju d ge s d e p e n d e d o n th e p ro fe s s io n a l o b liga t io n o f la wye r s t o p ro vid e pro bono publico r e p re s e n t a t io n t o d e fe n d a n t s u n a b le t o re t a in co u n s e l.

6

The Criminal Justice Act (CJA) In 1964, the CJA was enacted to establish a comprehensive system for appointing and compensating lawyers to represent defendants financially unable to retain counsel in federal criminal proceedings .

The CJA authorized reimbursement of reasonable out -of -pocket expenses and payment of expert and investigative services necessary for an adequate defense .

While it provided for some compensation for appointed counsel (CJApanel attorneys), it did so at rates substantially below that which they would receive from their privately -retained clients .

7

Federal Defender Organizations In 1970, the CJA was amended to authorize districts to establish federal defender organizations as counterparts to federal prosecutors in U.S. Attorneys Offices and an institutional resource for providing defense counsel in those districts (or combinations of adjacent districts) where at least 200 persons annually require appointment of counsel .

8

Size and Structure According to the Administrative Office of the United States Courts, there are now 81 authorized federal defender organizations.

They employ more than 3,100 lawyers, investigators, paralegals, and support personnel and serve 91 of the 94 federal judicial districts.

There are two types of federal defender organizations: federal public defender organizations and community defender organizations.

9

Two Methods Federal defender organizations, together with the more than 10,000 private “panel attorneys” who accept CJA assignments annually, represent the vast majority of individuals who are prosecuted in our nation's federal courts .

CJApanel attorneys accept appointments in all CJAcases in the four districts not served by a federal defender organization .

10

The Decision to Charge The police may be the gatekeepers of the criminal justice system, but ultimately the decision to prosecute the suspect is up to the prosecutor .

Recall that all criminal prosecutions are brought forward by the government, and the prosecutor is the government’s lawyer .

11

Charging Documents If the prosecutor decides to move forward with a case, a charging document is file d wit h t h e co u rt.

A ch a rgin g d o cu m e n t fo rm a lly a ccu s e s t h e s u s p e ct wit h co m m it t in g a crim e .

Th e re a re t wo b a s ic t yp e s o f ch a rgin g d o cu m e n t :

1. An in fo rm a t io n o rigin a t e s wit h t h e p ro s e cu t o r 2. An in d ict m e n t o rigin a t e s wit h a gra n d ju ry

Wh ile th e s e d o cu m e n t s d iffe r in m a n y re s p e ct s , t h e y b o t h co n t a in a fo rm a l s t a t e m e n t o f t h e ch a rge a ga in s t t h e s u s p e ct.

12

Reviewing the Charge Before criminal cases can move forward to trial, there must be a judicial determination that such a move is justified by the evidence .

Often, a lower court judge rather than a judge with jurisdiction in a felony case make this determination .

As with many criminal justice tasks, the standard of proof here is probable cause .

13

First Appearance Several important functions are served by a first appearance:

● Defendants are informed of the nature of the charges against them. ● Defendants have their constitutional rights explained to them. ● If the defendant is indigent (too poor to afford a lawyer), counsel is

appointed. ● The judge also determines if bail will be granted, and if so, how much.

14

Bail Conventionally, bail e n t a ile d m o n e y o r o t h e r va lu a b le p ro p e r t y t h a t d e fe n d a n t s d e p o s it wit h t h e co u r t in o rd e r t o e n s u re t h e ir a p p e a ra n ce in co u rt if t h e y a re re le a s e d p rio r t o t ria l.

If t h e d e fe n d a n t fa ile d t o a p p e a r a t t ria l, th e m o n e y o r p ro p e r t y wa s fo rfe it e d t o t h e co u rt.

Oft e n , co u rt s d o n o t re q u ire a ca s h b a il.

Th e y r e le a s e t h e d e fe n d a n t o n a m e r e p e r s o n a l p ro m is e t o a p p e a r-- ”released on their own recognizance ” (ROR).

15

Denial of Bail Not all criminal defendants are granted bail .

Recall that the constitution prohibits excessive bail, but does not guarantee bail in general .

The Supreme Court has determined that when criminal defendants are a flight risk or that they are a danger to the community, then they can be held in jail to await trial .

Still others wait on their trial date in jail because they cannot afford bail .

16

Criticisms of Bail According to the Bureau of Justice Statistics (2007), 62% of felony defendants in State courts in the 75 largest counties were released prior to the disposition of their case.

Many critics argue that the current bail system, with an increasing reliance on commercial bail bonding, discriminates against the poor .

As one would suspect, the higher the bail, the fewer defendants are released .

About 7 in 10 defendants secured release when bail was set at less than $5,000, but this proportion dropped to 1 in 10 when bail was set at $100,000 or more .

17

Bail Decisions Perhaps the most important criterion for setting bail is the seriousness of the offense .

Those charged with murder are the least likely to receive bail, followed by other serious crimes such as rape, robbery, and burglary .

Those charged with less serious offenses and white -collar offenses (e.g., fraud) are the most likely to be released on bail .

18

Some People Never Learn! Another reason that so many defendants do not stay out of jail pending trial is the commission of new offenses .

Approximately a third of released defendants were charged with one or more types of pretrial misconduct, and nearly a fourth had a bench warrant issued for failing to appear in court .

About a sixth were arrested for a new offense, with more than half of those new arrests were for felonies .

19

Innocent Until Proven Guilty As a rule, suspects are innocent until proven guilty and are deserving of bail.

This is based not on an explicit statement of the right in the Bill of Rights, but was established by the Court in the landmark case of Coffin v. U.S. (1895).

20

Coffin v. U.S. (1895) This U.S. Supreme Court case clearly defined the principle of the presumption of innocence for the first time in U.S. history .

Although believed to be inferred from the U.S. Constitution, no direct recognition of this presumption had been previously articulated .

The significance of this case is that it places the burden of "proof beyond a reasonable doubt" on the prosecution in criminal proceedings .

In reference to setting bail, all defendants are to be presumed innocent prior to adjudication, and thus, not subject to criminal penalties prior to trial .

21

U.S. v. Salerno(1987) In U.S. v. Salerno (1987), t h e U.S. Su p re m e Co u rt u p h e ld t h e co n s t it u tio n a lit y o f t h e Ba il Re fo rm Act o f 1984.

Th is ca s e co n s is t e d o f a n a lle ge d m e m b e r o f a n o r ga n ize d crim e "m a fia fa m ily" ch a rge d u n d e r t h e Racketeering and Corrupt Influence Organization (RICO) s t a t u t e wh o wa s b e lie ve d t o p o s e a t h re a t t o go ve rn m e n t a l wit n e s s e s if re le a s e d o n b o n d .

Th e ch a lle n ge wa s b a s e d o n t h e p ro vis io n s o f t h e Fifth a n d Eigh th Am e n d m e n t s t o t h e U.S. Co n s t it u t io n .

22

The Limits of Salerno The Court held that sufficient evidence was present to detain the subject prior to trial and that a "compelling interest" (i.e., public safety) aside from the risk of nonappearance was presented to warrant the defendant's detention .

However, the Court cautioned the judiciary and pretrial services agencies by noting that the United States' system of justice is based on the presumption of innocence and that pretrial release should be "the norm" in the vast majority of criminal cases.

23

The Grand Jury An arrest by the police is by no means a guarantee that a suspect will go to trial .

As previously discussed, a probable cause determination must be made .

In some jurisdictions this determination is made by a judge, but in others the decision is made by a panel of citizens .

The federal government, along with about half the states, has such a panel of citizens that is known as a grand jury .

24

How the Grand Jury Works The size of the grand jury varies from jurisdiction to jurisdiction, but they are generally larger than trial (petit) juries, consisting of up to 23 members .

In cases where the prosecutor convinces a majority of the grand jury that there is probable cause to support the criminal allegations, the grand jury approves the indictment .

25

Criticisms of the Grand Jury Critics of the grand jury system seem them as antithetical to due process and believe that they should be abolished altogether.

Grand jury hearings are held in private, and hearsay evidence is admissible.

There is no right of the defendant to have an attorney present at the hearing, and no right to cross -examine witnesses offering testimony against the accused.

Grand jury hearings are known as ex parte p ro ce e d in gs b e ca u s e t h e d e fe n s e is n o t re p re s e n t e d .

26

Preliminary Hearing In jurisdictions where grand juries are not used, the grand jury proceedings are replaced by a preliminary hearing .

In most jurisdictions, attorneys from both sides are present, and a judge presides .

For this reason, preliminary hearings are considered an adversarial process .

If, after hearing evidence from both sides, the judge determines that probable cause does exist, then he or she sends the case forward to trial .

27

Arraignment If a case moves past the probable cause determination process, it will move forward to a trial court that has jurisdiction over the offense charged.

At an arraignment, the judge informs the defendant of the charges alleged by the prosecution and asks for a plea fro m t h e d e fe n d a n t .

28

Common Pleas The most common pleas available to criminal defendants are

1. Guilty 2. not guilty 3. nolo contendere

The nolo contendere p le a , m e a n in g “n o co n t e s t ”, h a s t h e s a m e e ffe ct in a crim in a l t ria l a s a gu ilt y p le a , b u t t h e re is n o a d m is s io n o f gu ilt th a t ca n b e u s e d a ga in s t t h e d e fe n d a n t la t e r in a civil t ria l.

If t h e d e fe n d a n t p le a d s n o t gu ilt y, th e n th e ju d ge s e t s a t ria l d a t e .

29

Pretrial Motions Before the actual trial begins, both the prosecution and the defense can make several motions .

One of the most common pretrial motions is a motion for discovery ; Discovery is wh e r e t h e p ro s e cu t io n m u s t m a ke a va ila b le a ll o f t h e e vid e n ce it h a s t o t h e d e fe n d a n t .

Th e p ro s e cu t o r is le ga lly a n d e t h ica lly o b liga t e d t o t u rn o ve r a n y exculpatory evidence .

In o t h e r wo rd s , if t h e p ro s e cu t io n h a s a n y e vid e n ce t h a t t e n d s t o p ro ve t h e d e fe n d a n t ’s in n o ce n ce , t h e n it m u s t b e t u rn e d o ve r t o t h e d e fe n s e .

30

Motion to Suppress Also common are motions to suppress .

A m o t io n t o s u p p re s s is a re q u e s t b y t h e d e fe n s e t o d is a llo w ille ga lly o b t a in e d e vid e n ce fro m b e in g a d m it t e d a t t ria l.

If th e d e fe n s e p re va ils in th is m o t io n , t h e ju ry will n e ve r s e e t h e e vid e n ce . In o t h e r wo rd s , a m o t io n t o s u p p re s s is a n a t t e m p t b y t h e d e fe n s e t o in vo ke t h e e xclu s io n a ry ru le .

31

Juvenile Process When a juvenile breaks a criminal law, the process that is followed by the legal system is quite different from the adult criminal justice system's process .

The idea that juvenile offenders are different from adults is so fundamental to the American philosophy of justice that separate courts have been established in every state to deal with juvenile issues.

32

Key Differences A key difference between the juvenile process and the adult process is the enormous amount of discretion that each set of actors —police, courts, and corrections —has in a juvenile case.

While the precise process of dealing with juvenile cases varies from jurisdiction to jurisdiction, there are many common rules that must be followed because of constitutional rights that have been defined by the Supreme Court of the United States.

33

Going to Court Once law enforcement has decided to turn a case over to the courts (rather than proceeding with an informal diversion), a prosecutor or juvenile intake officer (often a juvenile probation officer) is assigned to the case.

The intake officer may choose to dismiss the case, handle the case informally, or file a petition .

34

The Petition The petition is a fo rm a l d o cu m e n t a lle gin g wro n gd o in g b y th e ju ve n ile , s im ila r t o a ch a rgin g d o cu m e n t (in fo rm a t io n o r in d ict m e n t ) in a d u lt crim in a l co u rt.

De p e n d in g o n t h e ru le s o f t h e p a rt icu la r ju ris d ict io n , s o m e ju ve n ile s m u s t a p p e a r b e fo re a ju d ge e ve n t h o u gh n o fo rm a l p ro ce e d in gs a re b e gu n .

Th e s e in fo rm a l a p p e a ra n ce s b e fo r e t h e b e n ch a re ca lcu la t e d t o h e lp t h e ju ve n ile u n d e rs t a n d t h e s e rio u s n e s s o f d e lin q u e n cy.

35

Which Court? If the prosecutor decides to begin formal charges, a petition is filed with the court .

An arraignment is held, and the juvenile is informed of the charges.

Many states have rules that allow older juveniles accused of serious crimes to be sent to adult court .

The most common of these waivers t o a d u lt co u rt a re fo r vio le n t o ffe n s e s .

36

Juvenile Plea Bargaining Like adults, juveniles can often enter into a plea agreement with the state .

Such plea agreements usually result in the juvenile being placed on probation and being required to adhere to many rules and conditions .

Counseling, curfews, and maintaining certain academic standards are common requirements .

37

Judicial Diversion Many juvenile cases are handled through a process of judicial diversion .

Wh e n a ju ve n ile ju d ge d ive rt s a ca s e , s o m e in fo rm a l s a n ct io n o r t re a t m e n t o p t io n is u s u a lly o rd e re d .

Co u n s e lin g, co m m u n it y s e rvice , a n d vict im re s t it u t io n a re o ft e n o rd e re d .

If t h e ju ve n ile d o e s n o t co m p ly wit h t h e ju d ge 's o rd e r s , fo rm a l ch a rge s ca n b e re in s t a t e d .

38

Adjudicatory Hearing The final option is for the judge to hold an adjudicatory hearing : Th is is t h e ju ve n ile ju s t ice s ys t e m 's e q u iva le n t o f a crim in a l t ria l.

In m o s t s t a t e s , t h e h e a rin g will b e co n d u ct e d b e fo r e a ju ve n ile ju d ge , b u t t h e re is ge n e ra lly n o ju ry in a ju ve n ile ca s e .

At th e co n clu s io n o f t h e h e a rin g, th e ju d ge will d e cid e wh e t h e r t h e a lle ga t io n s a re t ru e .

If s o , t h e ju ve n ile will b e adjudicated delinquent .

Th is re s u lt is co m m o n ly re fe rre d t o a s sustaining the petition . 39

Disposition Hearings In many cases, the adjudicatory hearing is bifurcated --Th is m e a n s t h a t t h e r e is a s e p a ra t e d is p o s it io n h e a rin g, wh ich is t h e ju ve n ile co u rt 's e q u iva le n t o f a s e n t e n cin g h e a rin g in a d u lt co u rt.

Th e ju d ge d e s ign s a d is p o s it io n in t h e ca s e b a s e d (a t le a s t t h e o r e t ica lly) o n wh a t is in t h e b e s t in t e re s t o f t h e ch ild .

Co u n s e lin g, p ro b a t io n , co n fin e m e n t in a s e cu r e d e t e n t io n fa cilit y, a n d vict im re s t it u t io n a re co m m o n in ju ve n ile d is p o s it io n s .

40

Post-disposition Hearings Juveniles can also be ordered to reappear in court periodically for post - disposition hearings .

Th e s e h e a rin gs a re d e s ign e d t o u p d a t e th e ju d ge o n th e ju ve n ile 's p ro gr e s s t o wa rd re fo rm .

41

Introduction to Criminal Justice Section 5.4: The Trial

Prepared by Adam J. McKee

1

Trial Rights The Sixth Amendment h a s a n e n o rm o u s im p a ct o n t h e crim in a l t ria l p ro ce s s .

In clu d e d a m o n g t h e gu a ra n t e e s a re

1. t h e righ t t o a s p e e d y t ria l 2. t h e righ t t o a p u b lic t ria l 3. t h e righ t t o a t ria l b y ju ry 4. t h e righ t t o n o t ice o f a ccu s a t io n s 5. t h e righ t t o co n fro n t wit n e s s e s a ga in s t t h e d e fe n s e 6. t h e a s s is t a n ce o f co u n s e l.

2

Jury Trial v. Bench Trial As with most constitutional rights, the defendant can waive the right to a jury trial and opt to have a bench trial .

A bench trial is a type of trial in which the judge serves as the finder of fact and determines the innocence or guilt of the defendant .

Such a trial can be advantageous to the defense when the circumstances of the case are likely to cause hostility in a jury such that emotional reactions are likely .

3

The Jury While juries in criminal cases may consist of as few as six members, the most common jury composition in criminal cases is of twelve members .

Jurors are selected from a jury pool .

The jury pool is formed by selecting (usually randomly) potential jurors from a list created by listing citizens who live within the geographical jurisdiction of the court .

4

Jury Membership Potential jurors are identified in several different ways: Some courts prepare lists from voter registration records, motor vehicle registration records, property tax rolls, and so forth .

Members of the jury pool must report for jury duty on a specified date and time .

When a case is scheduled for trial, each juror in the pool is assigned a number, and the first slate of potential jurors is randomly selected by number .

5

Jury Selection The Sixth Amendment stipulates that juries must be impartial.

In order to eliminate those jurors who might be biased, the court conducts a voir dire examination.

Voir Dire is t h e p ro ce s s o f q u e s t io n in g p o t e n t ia l ju ro rs a n d p o s s ib ly e lim in a t in g s o m e o f t h e m .

6

Eliminating Jurors In most state courts, both the prosecution and defense may eliminate potential jurors.

A challenge for cause ca n b e m a d e if it is d e m o n s t ra t e d t h a t t h e ju ro r is b ia s e d in s o m e wa y.

7

Peremptory Challenge Some jurisdictions allow a certain number of peremptory challenges.

A peremptory challenge is t h e d is q u a lifica t io n o f a p o t e n t ia l ju ro r fro m ju ry s e rvice wh e re n o re a s o n fo r t h e ch a lle n ge is s t a t e d .

Th e la wye r s a re p ro h ib it e d , h o we ve r, fro m e xclu d in g a n yo n e fro m ju ry d u t y b a s e d o n ra ce o r ge n d e r.

Th is is ve r y d ifficu lt to e n fo r ce in p ra ct ice s in ce n e a rly a n y re a s o n , n o m a tt e r h o w t rivia l, ca n b e o ffe re d t o e xp la in wh y a p a rt icu la r in d ivid u a l wa s e xclu d e d .

8

Elements of a Trial Going forward to a trial is serious business for the defendant .

If the prosecution is willing to go that far, then they are convinced that they have a compelling case against the defendant .

Statistics show that most criminal defendants that take their case to trial will be found guilty .

9

Opening Statements A criminal trial begins with both sides making statements to the jury .

Generally, each side will make statements about what they intend to prove .

As a matter of legal custom, the prosecution goes first because it has the burden of proof .

The opening statements are not supposed to be argumentative in nature .

The idea of the opening statements is to provide a "road map" of the case to the jury .

10

Types of Evidence Facts asserted by both sides in a criminal trial must be supported by evidence.

There are several types of evidence:

1. Testimonial evidence co n s is t s o f s t a t e m e n t s m a d e b y a n yo n e wit h kn o wle d ge o f a n e ve n t .

2. Direct evidence is e vid e n ce t h a t t e n d s t o p ro ve d ire ct ly a fa ct in q u e s t io n .

3. Circumstantial evidence is e vid e n ce t h a t cre a t e s a n in fe re n ce t h a t a fa ct e xis t s .

11

Hearsay Hearsay is not generally admissible in court, but there are many exceptions to the hearsay rule.

Hearsay is testimony given when the person testifying has no direct knowledge of the facts.

In other words, it is second -hand information.

One of the most commonly referenced exceptions to the hearsay rule is the dying declaration .

12

Dying Declaration A dying declaration is a s t a t e m e n t m a d e b y a p e rs o n t h a t b e lie ve s t h a t t h e y a re a b o u t t o d ie .

Th e lo gic o f t h is e xce p t io n is t h a t p e o p le wh o a re a b o u t t o d ie h a ve n o re a s o n t o lie , a n d t h a t t ru t h fu ln e s s ca n b e s a fe ly a s s u m e d .

13

Rules of Evidence The procedural rules for the admission of evidence at trial are complex .

The courts have heavily regulated what evidence can be presented and how it can be presented in a long history of decisions, as well as rules of evidence .

Federal courts abide by the federal rules of evidence , wh ich a re a co d ifie d ve rs io n o f t h e ru le s th a t d e ve lo p e d o ve r h u n d r e d s o f ye a r s fro m t h e co m m o n la w t ra d it io n .

14

The Prosecution's Case The next phase of a trial after the prosecution and defense has presented opening statements is the presentation of the state’s evidence by the prosecutor.

The prosecutor will call witnesses and conduct direct examinations.

The defense is permitted to conduct cross -examinations of the witnesses to discredit their testimony.

15

The Confrontation Clause This courtroom testimony is mandatory because the Sixth Amendment guarantees criminal defendants the right to face and question those who give evidence against them .

This is often known as the Confrontation Clause .

16

The Defense's Case As a legal matter, there is no requirement that the defense present any evidence: The burden of proof is on the prosecutor.

In other words, the defense is under no obligation to prove innocence.

All the defense needs to do to prevail is to show that prosecution failed to prove every element of the offense beyond a reasonable doubt.

This is no easy task; the beyond the reasonable doubt standard is the highest standard of proof known to American law.

17

The Fifth Amendment Because of the Fifth Amendment protection, the defendant cannot be compelled to testify .

Whether or not the defendant does testify is a matter of defense strategy .

If the defendant does testify, he or she must face cross-examination .

18

Raising Doubts The most important job of the defense attorney then is the creation of reasonable doubt in the minds of the jurors .

This can be done using several strategies .

Perhaps the most obvious defense strategy is to present an alibi .

An o t h e r co m m o n s t ra t e gy is t o p ro vid e a d iffe r e n t a cco u n t fro m t h e p ro s e cu t io n o f t h e e vid e n ce t h a t lin ks t h e d e fe n d a n t t o t h e crim e .

An o t h e r t a ct ic is to a t t a ck t h e cr e d ib ilit y a n d co m p e t e n ce o f t h e p ro s e cu t io n ’s wit n e s s e s .

19

Closing Arguments The closing arguments provide each side the opportunity to summarize the evidence presented, and clarify the opposing theories as to what happened .

The lawyers are limited to talking about the evidence that has already been presented, and cannot introduce new evidence or refer to evidence that was not presented .

20

Jury Instructions Judges will usually inform the attorneys of his decisions regarding the jury instructions prior to this phase .

Knowing what the instructions will be, the attorneys can use the closing argument to relate the instructions to specific pieces of evidence .

21

How Closing Arguments Work In a criminal matter, the prosecution usually will present closing arguments first .

The Defense attorney will then give closing arguments for the defense, and will usually speak to the statement made by the prosecutor in the State's closing arguments .

In many jurisdictions, the prosecution is allowed a final speech before the jury, known as a rebuttal .

22

Jury Instructions Before the jury leaves the courtroom to deliberate, the judge will give them what are known as jury instructions .

These include the elements of the offense charged, how they should apply facts to the law, and defines pertinent legal concepts such as beyond a reasonable doubt .

23

Charge to the Jury Possible verdicts are usually part of the jury instructions .

The basic idea is to provide the jury with the relevant law that they should consider in their deliberations .

Because the jury instructions must meet certain legal requirements and may be grounds for later appeals, judges often read the instructions to the jury verbatim .

This reading of the instructions is known as the judge's charge to the jury .

24

Jury Deliberations After the jury has been charged, the jurors will retire to a jury room for deliberations .

The first order of business is to elect a foreperson .

Th e fo r e p e rs o n will p re s id e o ve r t h e ju ry d e lib e ra t io n s , a n d d e live r t h e ju r y's fin a l ve rd ict .

Ju ry d e lib e ra t io n s a re co n d u ct e d in s e cr e t , a n d a b a iliff will u s u a lly b e a s s ign e d t o e n s u re t h a t n o o n e co m m u n ica t e s wit h t h e ju ry d u rin g d e lib e ra t io n s .

25

Avoiding Outside Influences If the jury does not reach a verdict by the end of the first day of deliberations, it may be sequestered .

Sequestration m e a n s m o vin g th e ju ro r s t o a p la ce wh e re t h e y will b e s e clu d e d a n d co m p e lle d to a vo id co n ta ct wit h p e o p le a n d m e d ia t h a t m igh t re s u lt in t h e ju ro rs o b t a in in g in fo rm a t io n a b o u t t h e ca s e .

In m o s t ca s e s , th e ju ro r s a re s im p ly a llo we d t o go h o m e fo r t h e n igh t a n d in s t ru ct e d n o t t o re a d n e ws p a p e rs , wa t ch n e ws p ro gra m s , o r d is cu s s t h e ca s e .

26

Unanimous Decisions Most states require that the final verdict reached by a jury in a criminal trial be unanimous .

A jury that cannot reach a unanimous verdict is known as a hung jury .

If t h e ju ry h a n gs , t h e ju d ge h a s n o ch o ice b u t t o d is m is s t h e ca s e .

If t h e ca s e is d is m is s e d b e ca u s e o f a h u n g ju ry, th e p ro s e cu t o r h a s t h e o p tio n t o re t ry t h e ca s e in fro n t o f a n e w ju ry.

27

Double Jeopardy If the jury finds the defendant not guilty, then the same government cannot try the person again for the same charges.

This prohibition against trying a person twice for the same offense is known as double jeopardy .

Th e Fift h Am e n d m e n t p ro h ib itio n a ga in s t d o u b le je o p a rd y d o e s n o t p ro h ib it t h e p e rs o n fro m b e in g s u e d in civil co u r t , o r b e in g ch a rge d with t h e o ffe n s e b y a n o t h e r go ve rn m e n t e n t it y, s u ch a s a n o t h e r s t a t e o r t h e fe d e ra l go ve rn m e n t .

28

Death Penalty Juries The death penalty is such a serious punishment that those faced with it are given certain extra procedural safeguards.

In capital cases, the trial is said to be bifurcated , o r s p lit in t o t wo p a rt s .

Th e firs t p a rt o f t h e t ria l re q u ire s t h e ju ry t o d e t e rm in e gu ilt o r in n o ce n ce , a n d t h e s e co n d p a rt o f t h e t ria l a s ks ju ro rs t o d e t e rm in e if t h e p e rs o n d e s e rve s t o b e e xe cu t e d fo r h is (o r ve ry ra re ly h e r) crim e s .

In s u ch b ifu rca t e d p ro ce e d in gs , t h e p ro ce e d in gs m o ve t o t h e p e n a lt y p h a s e o n ly a ft e r a gu ilt y ve rd ict h a s b e e n re a ch e d .

29

The Penalty Phase During the penalty phase, the jurors hear about aggravating circumstances a n d mitigating circumstances .

● Aggravating circumstances a r e t h in gs t h a t m a ke t h e crim e m o r e o ffe n s ive t o t h e p u b lic, s u ch a s wh e n t h e vict im o f a m u rd e r is a ch ild o r a p o lice o ffice r.

● Mitigating circumstances a r e t h in gs t h a t m a ke t h e d e fe n d a n t le s s cu lp a b le fo r h is o r h e r crim e s .

If t h e ju ry ca n n o t u n a n im o u s ly a gr e e o n t h e d e a t h p e n a lt y, t h e n m o s t ju ris d ict io n s h a ve le gis la t io n t h a t p ro vid e s fo r a n a u t o m a t ic life s e n t e n ce .

30

Jury Nullification As a matter of legal theory, the American system of justice proceeds under the rule of law .

In reality, juries can take issue with the substance of the law, the administration of the law, or the sentence imposed by the law .

When juries are dissatisfied in this way, they can sometimes disregard the letter of the law and acquit the defendant despite evidence that reaches the level of proof beyond a reasonable doubt .

This disregard of the law by jurors is known as jury nullification . 31

Posttrial Process In most jurisdictions, the jury serves as a finder of fact, and are done with their service when a verdict is returned .

If that verdict is guilty, the judge most often imposes sentence .

Some jurisdictions, however, use a bifurcated trial system where the jury participates in a sentencing phase and chooses the sentence .

32

Posttrial Motions After a guilty verdict is handed down and a sentence is imposed, the defense can still file a few motions .

With any guilty verdict, the defense can file a motion for a new trial .

If the trial judge sustains this motion, a there will be a new trial, starting from scratch .

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Introduction to Criminal Justice Section 5.5: Sentencing

Prepared by Adam J. McKee

1

Sentencing In most jurisdictions, the judge holds the responsibility of imposing criminal sentences on convicted offenders .

Often, this is a difficult process that defines the application of simple sentencing principles .

The latitude that a judge has in imposing sentences can vary widely from state to state .

2

Judicial Discretion This is because state legislatures often set the minimum and maximum punishments for particular crimes in criminal statutes .

The law also specifies alternatives to incarceration that a judge may use to tailor a sentence to an individual offender .

3

Presentence Investigation Many jurisdictions require that a presentence investigation take place before a sentence is handed down .

Most of the time, the presentence investigation is conducted by a probation officer, and results in a presentence investigation report .

Th is d o cu m e n t d e s crib e s t h e co n vict ’s e d u ca t io n , e m p lo ym e n t re co rd , crim in a l h is t o r y, p re s e n t o ffe n s e , p ro s p e ct s fo r r e h a b ilit a t io n , a n d a n y p e rs o n a l is s u e s , s u ch a s a d d ict io n , t h a t m a y im p a ct t h e co u rt ’s d e cis io n .

4

Victim Impact Statements Many states now consider the impact that a crime had on the victim when determining an appropriate sentence .

A few states even allow the victims to appear in court and testify .

Victim impact statements a r e u s u a lly r e a d a lo u d in o p e n co u r t d u rin g t h e s e n t e n cin g p h a s e o f a t ria l.

5

Victim Statements & the Constitution Criminal defendants have challenged the constitutionality of this process on the grounds that it violates the Proportionality Doctrine re q u ire m e n t o f t h e Eigh th Am e n d m e n t , b u t t h e Su p re m e Co u rt h a s r e je ct e d t h is a rgu m e n t a n d fo u n d th e a d m is s io n o f vict im s t a t e m e n t s co n s t it u t io n a l.

6

Sentencing Hearings Many jurisdictions pass final sentences in a phase of the trial process known as a sentencing hearing .

Th e p ro s e cu t o r will r e co m m e n d a s e n t e n ce in th e n a m e o f t h e p e o p le , o r d e fe n d t h e re co m m e n d e d s e n t e n ce in th e p re s e n t e n ce in ve s t iga t io n re p o rt , d e p e n d in g o n t h e ju ris d ict io n .

De fe n d a n t s re t a in t h e righ t t o co u n s e l d u rin g t h is p h a s e o f t h e p ro ce s s .

De fe n d a n t s a ls o h a ve t h e righ t to m a ke a s t a t e m e n t t o th e ju d ge b e fo r e t h e s e n t e n ce is h a n d e d d o wn .

7

Influences on Sentencing Decisions The severity of a sentence usually hinges on two major factors:

1. The seriousness of the offense 2. The presence of aggravating or mitigating circumstances

In general, the more serious the crime, the harsher the punishment.

8

Concurrent v. Consecutive Sentences It is not uncommon for a person to be indicted on multiple offenses .

This can be several different offenses, or a repetition of the same offense .

In many jurisdictions, the judge has the option to order the sentences to be served concurrently o r consecutively .

A concurrent sentence m e a n s t h a t t h e s e n t e n ce s a re s e rve d a t t h e s a m e t im e .

A consecutive sentence m e a n s t h a t th e d e fe n d a n t s e rve s t h e s e n t e n ce s o n e a ft e r a n o t h e r.

9

Types of Sentences A sentence is the punishment ordered by the court for a convicted defendant .

Statutes usually prescribe punishments at both the state and federal level.

The most important limit on the severity of punishments in the United States is the Eighth Amendment .

10

The Death Penalty The death penalty is a sentencing option in thirty -eight states and the federal government .

It is usually reserved for those convicted of murders with aggravating circumstances .

Because of the severity and irrevocability of the death penalty, its use has heavily circumscribed by statutes and controlled by case law .

Included among these safeguards is an automatic review by appellate courts .

11

Incarceration The most common punishment after fines in the United States is the deprivation of liberty known as incarceration .

Ja ils a re s h o rt-t e rm fa cilit ie s , m o s t o ft e n ru n b y co u n t ie s u n d e r t h e a u s p ice s o f t h e s h e riff’s d e p a rt m e n t .

Ja ils h o u s e t h o s e a wa it in g t ria l a n d u n a b le t o m a ke b a il, a n d co n vict e d o ffe n d e rs s e rvin g s h o rt s e n t e n ce s o r wa it in g o n a b e d in a p ris o n .

Pris o n s a re lo n g-t e rm fa cilit ie s o p e ra t e d b y s t a t e a n d fe d e ra l go ve rn m e n t s .

12

Probation Probation serves as a middle ground between no punishment and incarceration .

Convicts receiving probation are supervised within the community, and must abide by certain rules and restrictions .

If they violate the conditions of their probation, they can have their probation revoked and can be sent to prison .

Common conditions of probation include obeying all laws, paying fines and restitution as ordered by the court, reporting to a probation officer, not associating with criminals, not using drugs, submitting to searches, and submitting to drug tests .

13

Intensive Supervision Probation (ISP) Intensive Supervision Probation (ISP) is similar to standard probation, but requires much more contact with probation officers and usually has more rigorous conditions of probation .

The primary focus of adult ISP is to provide protection of the public safety through close supervision of the offender .

Many juvenile programs, and an increasing number of adult programs, also have a treatment component that is designed to reduce recidivism .

14

Boot Camps Convicts, often young men, sentenced to boot camps live in a military style environment complete with barracks and rigorous physical training .

These camps usually last from three to six months, depending on the particular program .

The core ideas of boot camp programs are to teach wayward youths discipline and accountability .

While a popular idea among some reformers, the research shows little to no impact on recidivism .

15

House Arrest and Electronic Monitorin Today, most jurisdictions stipulate that offenders sentenced to house arrest must spend all or most of the day in their own homes .

The popularity of house arrest has increased in recent years due to monitoring technology that allows a transmitter to be placed on the convict’s ankle, allowing compliance to be remotely monitored .

House arrest is often coupled with other sanctions, such as fines and community service.

Some jurisdictions have a work requirement, where the offender on house arrest is allowed to leave home for a specified window of time in order to work . 16

Fines Fines are very common for violations and minor misdemeanor offenses .

First time offenders found guilty of simple assaults, minor drug possession, traffic violations and so forth are sentenced to fines alone .

If these fines are not paid according to the rules set by the court, the offender is jailed .

17

Criticisms of Fines Many critics argue that fines discriminate against the poor .

A $200 traffic fine means very little to a highly paid professional, but can be a serious burden on a college student with only a part -time job .

Some jurisdictions use a sliding scale that bases fines on income known as day fines.

Th e y a r e a n o u t gr o wt h o f t ra d itio n a l fin in g s ys t e m s , wh ich we r e s e e n a s d is p ro p o rt io n a t e ly p u n is h in g o ffe n d e r s wit h m o d e s t m e a n s wh ile im p o s in g n o m o re t h a n “s la p s o n t h e wris t ” fo r a fflu e n t o ffe n d e rs .

18

Day Fines This system has been very popular in European countries such as Sweden and Germany .

Day fines take the financial circumstances of the offender into account .

They are calculated using two major factors : The seriousness of the offense and the offender’s daily income .

The European nations that use this system have established guidelines that assign points (“fine units”) to different offenses based on the seriousness of the offense .

19

Restitution When an offender is sentenced to a fine, the money goes to the state .

Restitution requires the offender to pay money to the victim .

The idea is to replace the economic losses suffered by the victim because of the crime .

Judges may order offenders to compensate victims for medical bills, lost wages, and the value of property that was stolen or destroyed .

20

Community Service As a matter of legal theory, crimes harm the entire community, not just the immediate victim .

Advocates see community service as the violator paying the community back for the harm caused.

Community service can include a wide variety of tasks such as picking up trash along roadways, cleaning up graffiti, and cleaning up parks .

Programs based on community service have been popular, but little is known about the impact of these programs on recidivism rates .

21

“Scarlet-letter” Punishments While exact practices vary widely, the idea of scarlet -letter punishments is to shame the offender .

Advocates view shaming as a cheap and satisfying alternative to incarceration .

Critics argue that criminals are not likely to mend their behavior because of shame .

There are legal challenges that of kept this sort of punishment from being widely accepted .

22

Forfeitures Many jurisdictions have laws that allow the government to seize property and assets used in criminal enterprises .

Such a seizure is known as forfeiture .

Au t o m o b ile s , a irp la n e s , a n d b o a t s u s e d in ille ga l d ru g s m u gglin g a re a ll s u b je ct t o s e izu re .

Th e a s s e t s a re o ft e n give n o ve r t o la w e n fo rce m e n t .

23

The FBI’s Reasoning According to the FBI,

"Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities"

24

Appeals An appeal is a claim that some procedural or legal error was made in the prior handling of the case.

An appeal results in one of two outcomes.

If the appellate court agrees with the lower court, then the appellate court affirms t h e lo we r co u rt ’s d e cis io n .

In s u ch ca s e s t h e a p p e a ls co u rt is s a id t o u p h o ld t h e d e cis io n o f t h e lo we r co u rt .

25

Overturning Lower Court Decisions If the appellate court agrees with the plaintiff that an error occurred, then the appellate court will overturn t h e co n vict io n .

Th is h a p p e n s o n ly wh e n t h e e rro r is d e t e rm in e d t o b e s u b s t a n t ia l.

Trivia l o r in s ign ifica n t e rr o r s will re s u lt in th e a p p e lla t e co u rt a ffirm in g t h e d e cis io n o f t h e lo we r co u rt.

26

A “Get Out of Jail Free Card?” Winning an appeal is rarely a “get out of jail free” card for the defendant .

Most often, the case is remanded t o t h e lo we r co u rt fo r re h e a rin g.

Th e d e cis io n t o re t ry t h e ca s e u lt im a t e ly re s t s wit h t h e p ro s e cu t o r.

If t h e d e cis io n o f th e a p p e lla t e co u rt re q u ire s t h e e xclu s io n o f im p o rt a n t e vid e n ce , t h e p ro s e cu t o r m a y d e cid e t h a t a co n vict io n is n o t p o s s ib le .

27

Sentencing Statutes and Guidelines In the United States, most jurisdictions hold that criminal sentencing is entirely a matter of statute .

That is, legislative bodies determine the punishments that are associated with particular crimes .

These legislative assemblies establish such sentencing schemes by passing sentencing statutes or establishing sentencing guidelines .

These sentences can be of different types that have a profound effect on both the administration of criminal justice and the life of the convicted offender .

28

Indeterminate Sentencing Indeterminate sentencing is a type of criminal sentencing where the convict is not given a sentence of a certain period in prison .

Rather, the amount of time served is based on the offender's conduct while incarcerated .

Most often, a broad range is specified during sentencing, and then a parole board will decide when the offender has earned release .

29

Determinate Sentences A determinate sentence is o f a fixe d le n gt h , a n d is ge n e ra lly n o t s u b je ct t o re vie w b y a p a ro le b o a rd .

Co n vict s m u s t s e rve a ll o f t h e t im e s e n t e n ce d , m in u s a n y go o d t im e e a rn e d wh ile in ca rce ra t e d .

30

Mandatory Sentences Mandatory sentences are a type of sentence where the absolute minimum sentence is established by a legislative body .

This effectively limits judicial discretion in such cases.

Mandatory sentences are often included in habitual offender laws, such as repeat drug offenders .

Under federal law, prosecutors have the powerful plea bargaining tool of agreeing not to file under the prior felony statute .

31

Sentencing Guidelines The Sentencing Reform Act of 1984 wa s p a s s e d in re s p o n s e t o co n gre s s io n a l co n ce rn a b o u t fa irn e s s in fe d e ra l s e n t e n cin g p ra ct ice s .

Th e Act co m p le t e ly ch a n ge d t h e wa y co u rt s s e n t e n ce d fe d e ra l o ffe n d e rs .

Th e Act cre a t e d a n e w fe d e ra l a ge n cy, t h e U.S. Sentencing Commission , t o s e t s e n t e n cin g gu id e lin e s fo r e ve ry fe d e ra l o ffe n s e .

32

State Guidelines When the Federal Courts began using sentencing guidelines, about half of the states adopted the practice .

Sentencing guidelines indicate to the sentencing judge a narrow range of expected punishments for specific offenses .

The purpose of these guidelines is to limit judicial discretion in sentencing .

33

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