#1-2 PAPERS, 250 words/ two scholarly sources due 12/1!

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Worrall & Moore, Criminal Law and Criminal Procedure, 1e

Chapter 14

Charging and Pleading

14.1

14.2

Understand the considerations going into the prosecutor’s charging decision.

Summarize restrictions that apply to the prosecutor’s charging decision.

Explain the concept of joinder and the reasons for it.

Summarize the rules surrounding grand jury composition.

Explain why secrecy in grand jury proceedings is important.

CHAPTER OBJECTIVES

14.2

14.3

Summarize the rights of the grand jury witnesses and the targets of grand jury investigations.

Describe the investigative powers of the grand jury.

Explain the rules for challenging a grand jury indictment.

Define plea bargaining.

Outline the history of plea bargaining.

CHAPTER OBJECTIVES

14.3

Summarize the arguments for and against plea bargaining.

Explain the plea bargaining process.

Summarize the effects of plea bargaining on the court, the prosecutor, the defendant, and the victim.

CHAPTER OBJECTIVES

Outline the elements of a valid guilty plea.

14.4

Explain the process of contesting a guilty plea.

Understand the Considerations Going Into the Prosecutor’s Charging Decision

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.1

The

Charging

Decision

Unfair and

Selective

Prosecution

Restrictions on

Bringing Charges

Vindictive

Prosecution

Prosecutor’s Role, Discretion and Issues Surrounding Prosecutorial Misconduct

Prosecution

Disregarding

Legislation

Joinder

Overzealous

Prosecutors

Charges Against

Multiple

Defendants

14.1

Prosecutorial Discretion: A prosecutor’s authority to decide whether to proceed with criminal charges against a suspect

May choose not to prosecute for lack of evidence or because the defendant’s case is stronger

Disagreement with the harshness of a particular sentence can influence a prosecutor’s decision

Economic concerns about available resources can impact a prosecutor’s decision to proceed with criminal charges

The Prosecutor’s Charging Decision

Summarize Restrictions that Apply to the Prosecutor’s Charging Decision

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.1

Constitutional Restrictions on the Prosecutor’s Charging Decision

14.1

Selective

Prosecution

Vindictive Prosecution

Individual prosecuted based on a characteristic (i.e. race)

Violates Equal Protection

Prosecution based on revenge

Example: charging a person for exercising his or her rights

State v. McCollum

Violates Due Process

Explain the Concept of Joinder and the Reasons for It

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.1

Charging Methods for Serious Crimes by State

Multiple charges against the same individual in the same trial

Charges against multiple defendants in the same trial

Joinder

14.1

When Multiple Charges Can Be Filed

Same Criminal

Event

Separate Acts

Are Tied

Together

Same Modus

Operandi

14.1

Multiple

Defendants

Joinder is generally reserved for defendants who participated in the same act, transaction or series of acts constituting a criminal offense (i.e. conspiracy).

Summarize the Rules Surrounding Grand Jury Composition

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.2

Charging Methods for Serious Crimes by State

14.2


Impaneled	Either by the court or prosecutor
Duration	Members serve for a specified period of time which varies; the Federal Rules of Criminal Procedure allow for a maximum of 18 months
Size	Varies by state; 16-20 people on average
Voting Requirements	Varies by state; most common is for 12 members to agree on an indictment (true bill)
Selection of Members	Subpoenaed

Grand Jury Construction

Explain Why Secrecy in Grand Jury Proceedings is Important

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.2

Grand Jury

14.2

Reasons for Grand Jury Secrecy

To prevent the escape of possible indictees

To ensure freedom in grand jury deliberations

To prevent tampering with witnesses who may testify

To encourage persons with information to come forward

To protect the innocent who may ultimately be exonerated

**Noted in United States v. Rose (3rd Cir. 1979)

Summarize the Rights of Grand Jury Witnesses and the Targets of Grand Jury Investigations

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.2

Grand Jury

14.2

Generally, a target of a grand jury investigation does NOT have the following rights:

To appear in front of the grand jury

To have the assistance of counsel during the grand jury investigation

To be told he or she is the target of the investigation

To be reminded that he or she has the right to remain silent

Describe the Investigative Powers of the Grand Jury

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.2

Grand Jury Power

Investigative

Grants of Immunity

Findings of Contempt

Subpoenas

Explain the Rules of Challenging a Grand Jury Indictment

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.2

Evidence of Serious

Prosecutorial Tampering

Discrimination in the Composition of the Grand Jury Pool

Variance between Evidence Presented to the Grand Jury and at Trial

Challenging a Grand Jury Indictment

Define Plea Bargaining

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.3

Plea Bargaining: The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval.

14.3

NAME	DEFINITION
Charge Bargaining	Prosecutor negotiating with the defendant regarding charges that could be filed
Sentence Bargaining	Defendant agrees to plead guilty in exchange for a less serious sentence
Count Bargaining	The defense negotiates to have the defendant charged with fewer counts of a certain offense

Plea Bargaining

Outline the History of Plea Bargaining

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.3

Lecture Notes

Plea Bargaining

14.3

History of Plea Bargaining

As the U.S. legal system began to mature and lawyers became regular participants, trials slowed down and guilty plea rates increased out of necessity.

Plea bargaining was a somewhat common practice by the second half of the nineteenth century.

Despite its apparent necessity, plea bargaining was criticized extensively by early commentators. Some called it an “incompetent, inefficient, and lazy method of administering justice.”

Summarize the Arguments For and Against Plea Bargaining

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.3

Widely Accepted

Dispose of Cases Quicker

Plea a Case That is Not Promising

Lesser Sentence for Defendant

Victim Closure

Saves Court Time and Resources

Prosecutor Overcharging

Offender Plea to More Serious Charge

Wastes Time: Most Defendants Plead Guilty

Inadequate Punishment

Decides Guilt

Without a Trial

Undermines Justice System

In Favor of

Plea Bargaining

Against

Plea Bargaining

Summarize the Plea Bargaining Process

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.3

Plea

Bargain

Prosecutorial Inducements

Guilty or Nolo

Contendere

Plea from

Defendants

Judicial Approval to Reduce

the Sentence,

Charges or Counts

Effective Assistance of Counsel

Informed of Exculpatory Evidence

Plea Bargaining

14.3

Constitutional Rights During Plea Bargaining

14.3

Statutory Inducements

Judicial Inducements

Charitable Contributions

Relinquished Property

Surrender Professional License

Voluntary Sterilization

Voluntary Castration

Join the Army

Agreement Not to Appeal

Acceptable

Questionable

Inducements

Plea Bargaining

Summarize the Effects of Plea Bargaining on the Court, the Prosecutor, the Defendant, and the Victim

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.3

Effects of Plea Bargaining

PROSECUTOR:

Must fulfill promises after the agreement has been accepted by the court

COURT:

Has to decide whether to accept the plea

DEFENDANT:

Often gives up certain rights by pleading guilty but can preserve certain rights pursuant to conditional plea statutes

VICTIM:

Can get closure but also feel that the punishment was not sufficient

Outline the Elements of a Valid Guilty Plea

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.4

Intelligent

Defendant understands the charges, possible sentences and waived rights

Voluntary

The plea is voluntary and not the result of

force or threats

Factual

The plea results from conduct that has a basis in fact

Valid Guilty Plea

Explain the Process for Contesting a Guilty Plea

Learning Objectives

After this lecture, you should be able to complete the following Learning Outcomes

14.4

The Defendant May Wish to Contest the Guilty Plea He or She Enters If..

Plea Was the Product of Coercion by the Prosecution

Unconstitutional

Conduct by Law Enforcement

Prosecution Has Failed to Fulfill Its End of the Bargain

Reasons for nonprosecution include a lack of evidence and too much court backlog.

Selective prosecutions violate the equal protection clause of the Fourteenth Amendment. Vindictive prosecutions violate due process.

Joinder refers either to (1) bringing several charges against the same individual in the same trial or (2) bringing charges against multiple defendants in the same trial.

Grand jury selection pools must be representative in terms of race and gender.

CHAPTER SUMMARY

14.1

14.2

An individual who is the target of a grand jury investigation does not have the right (1) to appear, (2) to have the assistance of counsel, (3) to be told he or she is the target of the investigation, or (4) to be reminded of the right to remain silent.

Grand juries can issue subpoenas ad testificandum, which require witnesses to appear and testify, and subpoenas duces tecum, which compel the production of evidence.

Only when there is evidence of serious prosecutorial tampering, discrimination in the composition of the grand jury pool, or variance between the evidence presented will a grand jury indictment possibly be quashed.

CHAPTER SUMMARY

14.2

Reasons for this secrecy include: (1) to prevent the escape of possible indictees, (2) to ensure freedom in deliberations, (3) to prevent tampering with the witnesses, (4) to encourage persons who have information to come forward, and (5) to protect the innocence of those who are ultimately exonerated.

14.2

There are a number of arguments both for and against plea bargaining.

The plea bargaining process incudes (1) the defendant must be represented by effective counsel; (2) the defendant has the right to be informed by the prosecution of exculpatory evidence; (3) the prosecution can offer a wide range of inducements to the defense in order to secure a guilty plea; (4) there is some question about the propriety of so-called ad hoc plea bargaining; and (5) statutory and judicial inducements for the defendant to plead guilty should be kept to a minimum.

CHAPTER SUMMARY

14.3

Plea bargaining developed essentially out of necessity when trials slowed down and lawyers became more common.

Plea bargaining occurs when the prosecution offers some concession to the defendant in exchange for a guilty plea.

14.3

All plea agreements must be valid; that is, they must be knowing and intelligent, voluntary, and based in fact.

The defendant may wish to contest the guilty plea if:

(1) the plea was the product of coercion by the prosecution; (2) the prosecution has failed to fulfill its end of the bargain; or (3) other problems emerge, such as unconstitutional conduct on the part of law enforcement officials.

CHAPTER SUMMARY

14.4

Plea bargaining affects the court only insofar as the court has to decide whether to accept the plea. The prosecutor is affected by plea bargaining only after the agreement has been accepted by the court. The defendant often gives up certain rights by pleading. Victims often get closure.

14.3