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Criminal Law and procedure. Spring, 2012. Did you know………. The United States has the highest documented incarceration rate in the world, and the highest total prison population in the world - PowerPoint PPT Presentation
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SPRING, 2012
Criminal Law and procedure
Did you know………
The United States has the highest documented incarceration rate in the world, and the highest total prison population in the world
According to the Bureau of Justice Statistics, 7,225,800 people, at the end of 2009, were on probation, in jail, or on parole----1 in 32 people in the US
Did you know…….
In addition there are another 100,000 or so juveniles in detention
About 1 in 18 US males are either in jail, or being monitored by the Courts
The US prison population has quadrupled since 1980
In 2006, over 68 billion, 747 million dollars was spent on corrections in the US
THE COURT
What is the definition of “Court”Criminals are convicted by the “Court”, so
what gives them the right to try them, find them guilty, or innocent, and sentence them?
Where does their authority come from?
Chapter One What is Criminal Law?
Objectives: Define what law is Know what “common law” means Be familiar with the criminal law terminology Explain the difference between criminal law and civil
law Differentiate between the three categories of crimes Define federalism Understand basic criminal procedure
Introduction/Historical Background
In order for any society to operate smoothly it is necessary that it have rules in place
Without rules what would happen? These rules have been written down and are
known as laws.Law is defined as “the body of rules of
conductcreated by government and enforced by governmental authority”
Criminal Law is the study of wrongs committed against society
Basis of the American Legal System
In order to understand criminal law you have to understand law as it has developed in America
When the first English settlers arrived in America they brought with them many things..traditions, language, religion, history
They also brought with them their system of justice….”common law”
Common Law
Got its name because it was law that applied to everyone…it was common to all persons and all places in the English empire
The idea was that every case that had similar facts should be decided the same way….it created consistency and predictability in the law
People knew what to expect because Judges looked to similar cases to make similar decisions
The use of similar cases to decide a current case is known as “stare decisis” translated as “stand by the decision”
Example of Common Law
P1-2 in textIf a Judge in Essex, England ruled that entering
another’s house after sunset and removing goods belonging to another was the crime of burglary, then a Judge in Londonderry, England faced with the same facts should rule that it was also the crime of burglary
The Judge in Londonderry would look for a similar set of facts, review the case, and decide the same way….he would use the Essex case as “stare decisis”, and would stand by that decision
Definition of Common Law
System of law which originated in England and was later used in the United States, that is based on judicial decisions in other cases, instead of laws passed by a legislature
Precedent
A prior case which is used to make a decision in a current case is called precedent
Thus in the Londonderry case, the Essex case was used as precedent. The decision made by the Essex Judge served as the basis or precedent for the Londonderry judge’s decision
This continues to hold true and these terms “stare decisis” and “precedent” are still used today
definition of Precedent
Precedent is a prior decision that a court must follow when deciding a new, similar case
HANDOUT
Take your pick!You are the Judge. Review the facts of the
case before you. Now using the cases that are similar decide
how you would rule.Why?
Theories of Law and Schools of Jurisprudence
“Jurisprudence” is the study of lawHow laws develop is a constant source of study by
philosophers, lawyers, and social scientistsWhat makes something important enough to become
a written law that can be enforced, varies from era to era and culture to culture
What is considered right and wrong, and legal and illegal can change
The theories of what causes these changes, and what makes law is known “schools of jurisprudence”
There are differing opinions on how this happens
Things that used to be illegal/or weren’t acceptable?
Can you think of anything that used to be illegal or legally unacceptable that is now acceptable?
Answers include:
Marijuana useSame sex marriageNon-fault divorceGambling ProstitutionChild custody
Theories of Law/Schools of Jurisprudence
There are eight theories about what drives something to become a law
These theories are contained in pages 2-4 of your materials.
Durkheim Marx Blackstone Natural Law Historical Analytical Sociological Crit/Fem-Crit
Schools of Jurisprudence Activity
Each group will be assigned one to two of the schools on pages 2-4
Pick a spokesperson for your groupYou are to review the theory, summarize it
and be prepared to tell the class about it including:
What the theory is What they believe Any other important information regarding the theory Examples Person responsible or influential in the theory
Durkheim’s Consensus Theory
French philosopher, known as the Father of Sociology
Laws develop out of society’s consensus of what is right and wrong
Consensus: definition “general agreement by those concerned”
Crimes are crimes because society decides they are, not because certain actions are inherently right or wrong, as a result laws change over time to reflect changing attitudes in society
Marx’s Ruling Class Theory
Karl Marx was a German philosopher and socialist who believed that laws are a reflection of the interests or ideology of the ruling class (bourgeoisie)
Laws are objective signs that a class conflict exists between the ruling class and the working class(proletariat)
Laws will only change when those in power change
Blackstone’s Theory
William Blackstone was a great English legal analyst who believed there were two different types of crimes.
Inherently evil crimes where the behavior itself is bad or evil male in se, example murder
crimes that by themselves are not evil, but which society has chosen to make wrong male prohibita, example driving a car without a valid registration card
Natural Law School of jurisprudence
Believe that people have “natural rights” and that laws are based on these rights
Their belief is rooted in the moral theory of law and that the laws are morality that has been enacted
Based on the famous philosopher John Locke who believed that even without laws that are written down there exists a natural law that man must abide by with natural rights that cannot be infringed upon
Locke influenced Thomas Jefferson as seen in the Declaration of Independence (quote p.1)
The Historical School
Precedent is only relied on if the society’s current beliefs reflect the beliefs in the past case
The Historical School would support overturning precedent if times and beliefs have changed.
The Analytical School
Law is determined by logic, cases are decided not on emotions, but on the logical outcome that should occur based on the facts
The Sociological School
Also known as realists believes that law is a way to achieve goals within a society by shaping societal behavior
Realists decide on a public policy they want to achieve, then manipulate laws to achieve their policy goal
The Crits/Fem-Crits
Crits (Critical Legal Studies School) believed that the legal system is random and that there is no neutrality in the law because the law continues to allow social inequality of those not in power. Believe judges make decisions based on their own politics and ideals
Fem-crits are an offshoot of the crits and believe that the current system perpetuates the oppression of women
Which theory fits into the American system?
What do you think?
American system of jurisprudence
Unique in that no one theory fitsThe are elements of some in many of the laws
that exist in the United StatesSee example on pages 4-5We do combinations of these theories
Criminal Law vs. Civil Law
Legal proceedings are classified as either criminal or civil
What is the difference?Each have different functions, rules,
procedures and outcomes
O.J. Simpson case
What is the difference between finding guilt beyond a reasonable doubt and demonstrating a preponderance of the evidence?
What standard of proof is required in a criminal trial? In a civil trial?
What does a criminal trial require the higher standard?
Proof Beyond a Reasonable Doubt:
What Does it Mean?• A doubt of 7 1/2 on a scale of 10.• A doubt based on reason and
common sense.• Not frivolous or fanciful doubt.• Substantial doubt.• A doubt that would cause prudent
persons to hesitate before acting in a matter of importance to themselves.
Varying definitions have evolved in different states over the years. “A reasonable doubt exists when a factfinder cannot say with moral certainty that a person is guilty or a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as such doubt as would cause a reasonable person to hesitate before acting in a matter of importance.”
“A ‘reasonable doubt’ is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation
Types of disputes-Civil
Civil Law Concerned with disputes between private parties and the
duties owed to one another Remedies can be monetary to compensate the Plaintiff for
they financial losses they have sustained Injunctive relief Civil cases far outnumber criminal cases Includes tort law, contract law, property law, law of
succession, family law Players are the Plaintiff (person who brings the action) and
the Defendant (the person against whom the action is brought)
Example car accident
Standard of Proof in a Civil Case
Preponderance of the evidence - : the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not. If imagining scales it would only require that it be tipped ever so slightly in favor of the Plaintiff
Criminal Law
Criminal law protects societyAny action that threatens an individual’s
safety is a crimeIn the United States we value the right to
own property. As a result, any member of society who takes another’s property has committed a crime
Since criminal law seeks to protect the public interests, an action in criminal law is not brought by the victim against the accused, but by the State against the accused. The victim is a witness
Commonwealth of Pennsylvania c. Accused
Criminal prosecutions are brought against the accused by a representative of the State…the Prosecutor or the District Attorney
They represent the society as a whole and are not there as the attorney for the victim
In a criminal action it is the State versus the Defendant (the person accused of committing a crime)
Criminal law penalties and the Burden of Proof
What kind of things can happen to the accused if he is convicted of a crime?
Penalties if Convicted
DeathImprisonmentFinesProbationHouse arrestElectronic home monitoringWork release
Why do we punish those who are convicted?
Why do you think we have set up our justice system with these type of penalties?
Purpose of penalties
Help the public by removing the defendant from society
Punishment is meant to be a deterrent to crime….if people see what can happen to them if they commit a crime it will discourage them from doing it because they do not want to risk getting caught and being punished
Burden of proof in a criminal case
In a criminal case it is up to the government to prove that the allegations against the defendant are true…they have the “burden of proof”. They have to prove their case against the defendant
In criminal cases the burden of proof is a hard burden. They must prove their case “beyond a reasonable doubt”
“Beyond a reasonable doubt”
The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.
Burden of proof in a civil case
The Plaintiff in a civil suit needs to prove their case by a “preponderance of the evidence”
Preponderance of the evidence means more likely than not. Tipping the scales ever so slightly in Plaintiff’s favor allows the Plaintiff to prevail
In terms of percentages it only has to be 50.1% in Plaintiff’s favor
Diagram of a courtroom
Judge
Plaintiff
Defendant
Jury
Why the Difference in Burden of Proof
Why do you think the burden of proof is greater in a criminal case than in a civil case?
State of California v. O.J. Simpson
This factual scenario demonstrates the difference in the Burden of Proof in a civil case and in a criminal case
See p.7 and handout
Types of Crimes
Crimes are classified into three categories: Summary offenses Misdemeanors Felonies
The exact terminology can vary from State to State
Summary Offenses
Minor violations such as speeding tickets, parking violations and littering
Carry short prison term, less than 90 days but are usually punishable by the payment of a fine
Usually tried at the lowest court level, district cour before a district justice or magistrate in the town where the offense occurred
Do not carry with them the full constitutional protections of a more serious crime, no right to trial by jury attaches
Misdemeanors
More serious are summary offensesIf convicted may serve a sentence of less than
1 year Examples of misdemeanors are public
drunkeness, underage drinking, shoplifting, possession (small amount personal use)
Felonies
Most serious category of crimeIncludes murder, rape, and robberyPunishable by long prison terms or even
deathBeing convicted of a felony has lifelong
consequences and will be prohibited from Serving in public office Serving on a jury Holding a professional license Voting while in jail Jeopardizes student aid awards
Definition of Court
Department of Justice defines a court as “an agency or unit of the judicial branch of government authorized or established by statute, or constitution, and consisting of one or more judicial officers, which has the authority to decide upon cases, controversies in law, and disputed matters of fact brought before it”.
Three Elements that make up a Court
Proper legal authority as stated in statute or constitution;
Found in the judicial branch of government, as opposed to the legislative, or executive branches;
Given the authority to make binding decisions..adjudicating a case or controversy with binding results
Top of the Judicial Branch in the Federal Government.
Final say in all matters dealing with the United States Constitution.
The American Court StructureThe U.S. has a dual court system.
dual courtOne system of state and local courts and another system of federal courts.
The American Court StructureThe court’s jurisdiction is set by law and limited by territory and type of case.
jurisdictionThe authority of a court to hear and decide cases.
The Federal CourtsThe authority for the federal court system is in the Constitution. The system includes:
• The Supreme Court• The federal courts of appeals• The federal district courts
United States District Courts• Trials in federal district court are usually
heard by a judge.• General trial courts• Federal criminal cases involve:
Bank robbery Counterfeiting Mail fraud Kidnapping Civil rights abuses
Circuit Courts of Appeals
A party that loses a case in district court may appeal to a federal circuit court of appeals, or in some cases, directly to the U.S. Supreme Court.
Circuit Courts of Appeals• Circuit courts of appeals review a case
for errors of law, not of fact.• Normally, three judges sit as a panel to hear
cases. Jury trials are not allowed.
The United States Supreme Court• Court of last resort in all questions of
federal law and U.S. Constitution.• The court may hear cases:
Appealed from federal courts of appeal. Appealed directly from federal district
courts. Appealed from the high court of a state,
if claims under federal law or the Constitution are involved.
The United States Supreme CourtThe U.S. Supreme Court is composed of:• A chief justice• Eight associate justicesEach member of the court is appointed for life by the president and affirmed by the Senate.
The United States Supreme Court• In order for a case to be heard by the
Supreme Court, at least four justices must vote to hear the case.
United States Supreme Court
• Consists of 1 Chief Justice and 8 Associate Justices
• Current Chief Justice is John Roberts• Current Associate Justices are:
– Antonin Scalia, Elena Kagan– Anthony Kennedy, Sonia Sotomayor– ClarenceThomas, Samuel Alito– Ruth Bader Ginsburg,– Stephen G. Breyer,
The United States Supreme Court
When the court decides a case, it can:
• Affirm the decision of the lower court and “let it stand.”
• Modify the decision of the lower court, without totally reversing it.
continued…
The United States Supreme Court• Reverse the decision of the lower court, requiring
no further court action.• Reverse the decision of the lower court and
remand the case to the court of original jurisdiction, for either retrial or resentencing.
How can I get my case to the Supreme Court?
• Good Luck!• Nearly 10,000 requests are made each
year, and of that about 100 are chosen by the Court
Supreme Court’s docket
• Hears only cases it considers important to national interest
• If you want the Court to hear your case you must file a petition for certiorari
• If the court picks your case to be heard it will issue a writ of certiorari
Power of Supreme Court
• Heads the judicial branch of government• Has the last say on the constitutionality of
laws and its decisions establish the laws of the land
• See Marbury, Miranda, Gideon, Brown examples
• Handout case summaries
Marbury v. Madison• It is the duty of the judicial department to
say what the law is..if two laws conflict with one another the court must decide how they each operate
• An 1803 case involving former President John Adams with incoming President Thomas Jefferson and the commission of a Justice of the Peace Marbury
Importance of Marbury• Established the role of judicial review,
power of Courts to determine the legality of laws
• First time court declared a law unconstitutional
Miranda v. Arizona• See summary sheets (handout)• 5th amendment rights• 6th amendment rights
Mr. Miranda’s Mugshot….see handout Miranda warning card
The Fifth Amendment guarantees many rights for people accused of crimes.
Those most relevant to the Miranda case are: •An accused person may refuse to answer questions that may incriminate him or her.
•An accused person may not be deprived of life, liberty, or property without due process of law.
The Sixth Amendment also includes many rights for people accused of crimes.
Those most relevant to the Miranda case are:
•"In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."
Before the Court decided the Miranda case, it had made these decisions relating to the Fifth and Sixth amendments:
In Brown v. Mississippi (1936), the Court had ruled that the Fifth Amendment protected individuals from being forced to confess.
In Gideon v. Wainwright (1963), the Court held that persons accused of felonies have a fundamental Sixth Amendment right to an attorney, even if they cannot afford one.
In Escobedo v. Illinois (1964), the Court ruled that when an accused person is denied the right to consult with his attorney, his or her Sixth Amendment right to counsel is violated.
In Miranda, the Court essentially said:
If police and prosecutors want to admit a confession against a defendant at trial, they must show that before the suspect was questioned in custody, he or she was warned of the rights to remain silent and to an attorney.
Suspects who waive their rights to remain silent and/or to an attorney must do so "voluntarily, knowingly, and intelligently."
If a defendant believes warnings were not given or that the confession was coerced, his or her attorneys can ask the judge to exclude from the trial the confession and any evidence obtained through the confession. This is called the exclusionary rule.
Gideon v. Wainright• 6th amendment right to counsel in a felony
criminal case• See handout
Brown v. Board of Education• Separate is not equal• Violation of the 14th Amendment Equal
Protection clause• See handout
Power/Importance of Precedent in Supreme Court decisions
• Recall a time when a coach, parent, teacher made a decision about something involving you based on a similar situation in the past.
• Was it fair or not? Provide examples• How about an example of when they
should not have applied the past situation to yours.
Power/importance of Precedent
• How about a time when people you know ignored what they did before.Fair, unfair?
• What is the benefit, risks of sticking by known rules?
• What is the benefit, risks of changing the rules for new situations?
• Precedent: this is what the courts struggle with
Precedent
• Supreme Court wrestles with precedent knowing what they do in a case impacts millions of Americans who could be in similar situations
• They question when precedent should be honored and when they should be overturned
• Different justices have different views on when this should be done
Stare decisis
• Means standing by a decision• Applying precedent to a case
• See handout #1
The State CourtsThe state courts have general power to decide nearly every type of case.
There are generally four levels of state courts:• Trial courts of limited jurisdiction• Trial courts of general jurisdiction• Intermediate appellate courts• State courts of last resort
Checks and Balances
• Court’s ability to declare laws unconstitutional…this is the power that the courts have to keep the other two branches of government (Executive and Legislative) in check
• System of restraint built into the constitution that prevents one branch from dominating the other two
Separation of PowersChecks and Balances
How do these principles of
democracy protect the people?
Separation of Powers
• Dividing different powers among three branches of government
• Prevents one branch from gaining too much power
• Legislative, Judicial, and Executive branches have their own unique powers
Analysis•Why is it important to separate the powers of the government? Think about the other principles of democracy…
Checks and Balances• Powers each branch has that allows
them to check up on the other branches
• Prevents branches from abusing their powers
• Preserves the separation of powers• Requires cooperation between the
branches of government
Legislative Branch(House and Senate)
• Can override a presidential veto• Can impeach and remove the president• Ratifies presidential appointments• Authorizes/appropriates funds for
legislation• Checks on the judiciary• Can impeach and remove judges• Confirms federal judges
Executive Branch(President and Cabinet)
• Proposes legislation (laws)• Vetoes legislation (laws)• Makes treaties w/ foreign
countries• Checks on the judiciary• Appoints federal judges• Enforces court decisions
Judicial Branch(Supreme Court and Lower Courts)
• Reviews executive decisions• Checks on Congress• Reviews congressional laws • Judicial Review (executive and
legislative)• Supreme Court Justices appointed
for life
Analysis• What are some problems with the checks
and balances system?• The Constitution is vague in some parts of
these powers. How can this cause a problem for each branch?
• How does this system promote cooperation between the branches of government?
• Which branch has the most power? Why?
Federal Judiciary
US Supreme CourtUS Courts of AppealUS District Courts
Federal courts try cases when federal laws are broken or they have exclusive jurisdiction (patent, admiralty, bankruptcy, state disputes)
Jurisdiction
• Jurisdiction is the power to hear and decide a case
• Some federal courts have exclusive jurisdiction over matters which ONLY they can hear
• Concurrent jurisdiction is when either a federal court or a state court COULD hear the case (suits involving residents of different states)
The Supremacy Clause
The Supremacy Clause of the Constitution establishes it as the supreme law of the land
State constitutions can’t give the states’ citizens fewer rights than given under the US Constitution..they can give more, but not less. (some states gave women the right to vote before the 20th amendment)
Commerce Clause
• As transportation and communicationd developed and the states were able to communicate quicker it linked them closer, and it was necessary to have some standardization in some laws that were common to the states
The Commerce Clause
The breadth of the commerce clause:– The commerce clause expressly permits
Congress to regulate commerce.– Over time, courts expansively interpreted
this clause, and today the commerce power authorizes the national government, at least theoretically, to regulate virtually every commercial enterprise in the United States.
The Commerce Clause
The regulatory powers of the states:– Under their police powers, state governments
may regulate private activities to protect or promote the public order, health, safety, morals, and general welfare.
– If state regulations substantially interfere with interstate commerce, they will be held to violate the commerce clause of the U.S. Constitution.
The Supremacy Clause• The U.S. Constitution provides that the
Constitution, laws, and treaties of the United States are “the supreme law of the land.”
• Whenever a state law directly conflicts with a federal law, the state law is rendered invalid.
• Preemption occurs when Congress chooses to act exclusively in a concurrent area.
The Taxing and Spending Powers
Taxing power:• “Power to lay
and collect taxes…”
• If a tax measure bears some reasonable relationship to revenue production, it is generally held to be within the taxing power.
Spending power:• Power “to pay the debts
and provide for the common defense and general welfare…”
• Congress can spend revenues not only to carry out its enumerated powers but also to promote other objectives so long as it does not violate the Bill of Rights.
Police Power
• State’s police power allows it to regulate the health, safety, morals and general welfare of its citizens
• It does this by passing and enforcing laws• Anytime a state passes a criminal law it
exercises its police powers
Federal v. State criminal law
• Federal criminal law covers crimes affecting interstate commerce or interfering with an individual’s constitutional rights
• State criminal laws cover intrastate crime, or crimes that occur within the state’s borders
Crimes that are a violation of both federal and state criminal statutes
• Mail/internet fraud• Insurance/medicare fraud• Bank robbery• Kidnapping• Prostitution• Drugs/narcotics
Key Actors in the Court Process
The three key actors in the court process are:• The prosecutor• The defense attorney• The judge
The ProsecutorThe prosecutor is a powerful actor in the administration of justice. Prosecutors have the authority to:• Decide whether to charge or not charge a
person with a crime• Decide whether to prosecute or not
prosecute a case• Determine what the charge will be
Adjudicating
Adjudicating…process by which a court arrives at a decision regarding a case
Structure of American Courts
Complex structure due to our federalist system
Each state runs its own system..no two are exactly alike
There are also federal court…at least one federal court sits in every state
In Philadelphia?
Local Pennsylvania court, ex. Philadelphia court of common pleas
Local Federal court, ex. United States district Court for the eastern district of Pennsylvania
Depends on the actionDepends on what the case is about
Watch out! You can get sued in both!
The Criminal Trial Process
• The procedural and substantive journey from suspicion through verdict/appeal
• Four phases:– Investigation, arrest and pre-trial– Trial– Appeal– Serving the sentence
Investigation,Arrest and Pre-trial
• Criminal process starts when authorities are alerted that a crime may have taken place (Observed by police, or reported by third party)
• See page 13 diagram• Once enough information has been
obtained, an arrest may be made
When will arrest take place
• If observed by law enforcement, arrest may take place immediately
• if probable cause exists..the officer will have to justify his actions with a sworn statement
• No need for officer to wait to get court permission…..suspect will be long gone
• Burglary in progress example
Citations
• For minor offenses police can issue a citiation
• Can plead guilty or not guilty by mail’can request a hearing date by posting security
Arrest after investigation
• Not all crime is witnessed by police• Many times it is necessary for an
investigation to be conducted• Can take weeks, months years• Involves looking for and interviewing
witnesses, victims, evidence, records• When they have enough an arrest warrant
will be issued
Arrest Warrant
• Document approved by a magistrate/judge stating that based on what has been presented there is probable cause to believe that a crime has been committed, and that it was committed by the suspect
• It authorizes the arrest of the suspect
Arrest warrant
• Police applies for it with local judge• Application includes sworn testimony of
police about the events and the suspect’s involvement in the events, and why they believe a crime has been committed
• They must persuade the judge that there is “probable cause” to issue the warrant against the suspect because the suspect committed the crime
After warrant?
• After the warrant has been issued the police can arrest the suspect
• The suspect will be processed, usually at the local police barracks
• Processing includes: fingerprinting, thorough search, Miranda rights given, questioning,
Preliminary Arraignment
• Accused’s first official notification of the charges against him
• Usually occurs shortly after arrest• Bail issue usually addressed at this time• Granted, not granted, how much
To grant or deny bail?
• Considerations include:– Nature of the offense– Employment status, history– Family– Residency– Age, character, reputation, mental health– Addictions?– Prior bail set; compliance?
Further……
• Prior criminal record• Flight risk• Aliases• Other factors affecting whether or not the
defendant will appear for court
Types of Bail
• ROR..promise by defendant that he will show up for court “released on his own recognizance
• Cash bail• 10% cash bail
Initiation of Formal Proceedings
• Following investigation and arrest, case moves to courts
• Officer’s discretion to refer to prosecutor• Prosecutor then has discretion to not file or
to file
Diversion
•Case may be referred to other agencies to allow person to avoid criminal prosecution.
• If person completes the alternative program, prosecutor agrees to dismiss
Decision to Charge
• Prosecutor bases charging decision on several factors– Officers recommendation (some officers have
better track record)– D’s amenability to diversion program– Quality of proof– Request of victim– Prior record of D – Witness problems
Decision to Charge
• Lack of resources means prosecutors will not charge every case
• Resources are allocated– Petty thefts diverted to devote resources to
armed robbery.– High profile tax evasion cases send message to
others
Decision to Charge
• Limits on prosecution discretion• Cannot be used vindictively• Vindictive prosecution violates due process
Decision to Charge
• Selective prosecution can violate equal protection.
Probable Cause Determination
• Initial probable cause determination.
this should occur promptly (how long is that?)
Probable Cause Determination• Should be enough time to allow police to
– Complete paperwork– Search suspect– Conduct inventory search– Fingerprint suspect– Photograph suspect– Check prior record of suspect– Test lab samples– Interrogate suspect– Check alibi– Compare crime with any similar crimes.
First Appearance
• Judge advises D of charges and of rights:• Right to remain silent• Right to Counsel, appointed if appropriate• Continuance to speak with family or counsel if
necessary• Right to jury trial or bench trial if jury waived• Consideration of bail
Detaining and Releasing Defendants
• Most Ds released on bail while waiting trial or plea disposition
• Approx 10% do not make bail and are held in pre-trial detention
Pre-Trial Detention
• Length – 33% more than 30 days; 20% more than 90 days
• Expense – approx $ 30 per day
Citation Release
• Minor offenses; traffic other minor misdemeanors and violations
• 20% released on citation without court appearance
• Many post bail without court appearance per pre-set bail schedule
• Return for plea and trial or sentence, or forfeit bond if allowed
ROR Release
• Promise to appear at later date• Most state’s rules of criminal procedure state
this is to be preferred• Only if court finds ROR not appropriate,
should money bail be used
Supervised Release
• Judge require that D be released to relatives or treatment program
Money Bond
• Unsecured bond: –D or other person signs bond.–Promise to pay if D not appear
Money Bond
• Court administered deposit bond–D deposits 10% of bond with clerk–Balance is promise to pay of D not
appear–If D appears, 90% of deposit is
returned
Money Bond• Privately administered bail bonds
– Bail bond agent– Charge fee (10%) of amount pledged– D not appear, bail bond company must pay full
amount, who may pursue D; D and family usually obligated to company for amount paid.
– D appears-the 10% paid by bail bond company is their fee.
Constitution and Bail
• Constitution does not guarantee right to bail.– 8th Amendment provides no excessive bail shall be
required– 14th Amendment requires due process to deprive
liberty– 14th Amendment prohibits denial of equal
protection of laws– These provisions all restrict pre-trial detention
Bail Factors
• Seriousness of offense• Amount of evidence against D• D’s family ties and connection to community,
employment, financial resources, character and mental condition.
• Length of residence in community• Criminal history• D’s prior history with regard to appearances or
non-appearances in proceedings
Bail Factors
• Sometimes no amount of money will ensure appearance.
U.S. v. Abrahams
Bail Factors
• Sometimes, no amount is low enough for D to afford
• bail system violates constitution for poor Ds– Denies due process - cannot help with defense if
locked up.– Violates equal protection – jailed because they are
poor– Violates 8th Amendment prohibition against
excessive bail
Pre-Trial Detention
• Length – 33% more than 30 days; 20% more than 90 days
• Expense – approx $ 30 per day
Preventive Detention
•Allows courts to deny bail to a dangerous offender who presents danger to victims, witnesses or community
Preventive Detention• Bail Reform Act of 1984
–Allows federal courts to deny bail–After hearing, finds that no
condition of release would ensure:»D appearance at trial» Safety of community
Preventive Detention• Bail Reform Act of 1984• Due process protections for D
–Hearing–Right to counsel– Present and cross-examine witnesses– Clear and convincing burden of proof
Conditions of Pre-Trial Confinement
• Effect of pre-trial detention is the same whether it is for public safety or to insure appearance.
• Jailed defendants are legally innocent• What are the rights of jailed
defendants?
When Right to Counsel Attaches
• 6th Amendment guarantees right to counsel in prosecutions
• Supreme Court held right attaches to all “critical stages”– Includes everything after formal charge filed
• Escobedo v. Illinois (1964) right to counsel at accusatory stage– When investigation focuses on D
Meaning of All Prosecutions
• Powell v. Alabama, (1932) due process requires indigent D have appointed counsel in capital cases.
• Gideon v. Wainwright (1963)extended right to counsel in state felony case
• Argersinger v. Hamlin (1972) right to counsel for misdemeanor if jail possible sentence.–Did not apply if incarceration not part of
the sentence
Testing the Government’s Case
• Filing of charge • Procedure becomes more formal and less discretionary
– Rules of Criminal Procedure– Rules of Evidence
• Prior to getting case ready for trial – test of sufficiency of govt evidence– Grand jury review– Preliminary hearing
Grand Jury Review
• Prosecutor seeks indictment from grand jury– Prosecutor presents evidence to grand jury– If grand jury approves indictment they issue a
true bill
Preliminary Hearing
• Prosecutor may file information (formal criminal complaint filed in court)– Judge then reviews evidence at a
preliminary hearing– If judge approves, judge binds over
defendant for trial
Grand Jury / Preliminary Hearing
• Both procedures test the sufficiency of government’s evidence
Preliminary Hearing• Preliminary hearing are adversary hearings
– Presided over by judge– Both sides are present– Hearing takes place in open court – public
hearing– Judge decides if state has enough evidence to
hold D for trial
Grand Jury• Grand jury proceedings are ex parte proceedings (one-sided)
– No judge present– Hearing controlled and directed by prosecutor– Hearing takes place in private – D and defense counsel not present
• Grand jury determines if evidence sufficient for D to be tried.
Preliminary Hearings
• Preliminary hearing usually held after the first appearance
• All judges are authorized to conduct preliminary hearings
• Many jurisdictions, preliminary hearing conducted by magistrates, JPs, municipal or city court judges, district court judges.
Preliminary Hearing
• First stage in criminal process where government must present evidence
• Usually the arresting officer and witnesses will testify
• Purpose is to prove there is probable cause to hold the defendant for trial
• Good opportunity to view the evidence against the defendant
Preliminary hearing
• Opportunity to gauge the witnesses demeanor
• Can be recorded and transcribed • Usually no evidence is submitted by
defendant at this stage• If government’s case is weak can be
thrown out at this stage, or some charges may be dismissed
Probable cause
• Standard of evidentiary proof needed at the preliminary hearing
• Government needs to prove that it is more likely than not that an offense took place and that it was the defendant who committed it
• Do not have to prove beyond a reasonable doubt at this point
Probable cause
• There must be sufficient proof to convince a reasonable person that it is more likely than not that the defendant committed the crime
Grand jury
• Prosecutor still has to formally charge the defendant and it is done by grand jury indictment or prosecutor’s information
• Grand jury is a group of citizens who listens to evidence and decides if a crime has been committed and if defendant should be charged
Information
• Formal document signed by and filed by prosecutor that charges an individual with a crime
• Usually contains a list of possible crimes, from the most serious to the least serious
• Dropping some of these is usually strategy in plea bargains
Indictment
• Formal charge document specifying what crimes the defendant has been accused of
• The prosecutor has wide discretion in deciding what crimes to charge
• Prosecutor can drop a case or withdrawal crimes at any stage in the proceedings
• Nol pros “no prosecution”
arraignment
• Formal charges are read to the defendant and the defendant enters a formal response to each one
• If a defendant chooses to plead at this stage the plea would be: guilty, not guilty, r nolo contendere (no contest) or not guilty by reason of insanity
• Nolo contendere defendant does not accept or deny guilt, but agrees to punishment
Time periods
• Strict time limits exist in criminal law• Speedy trial rights guaranteed by the 6th
amendment• Usually must be brought to trial within 365
days of arrest• Any time period that defendant requests a
continuance is not counted
Discovery
• Discovery is the process whereby both parties to a case learn of the evidence that the opposition will present– Rule 16 of the Federal Rules of Evidence
provides the defendant may “discover”:• Written statements or transcriptions of oral
statements• The defendant’s prior criminal record• Forms of real evidence considered “material”
– e.g. documents and photographs
Discovery
• Forms of Discovery– Discovery is part of the pretrial process
• If new witnesses become available during the course of a trial, it can take place later
– Discovery by the Defense• The defense learns the nature of the prosecution’s
case• The defense only needs to raise reasonable doubt
in the minds of the jurors
Discovery– Discovery by the Prosecution
• Relatively limited due to the constitutional rights enjoyed by criminal defendants
– The defense can not be compelled to provide the prosecution with incriminating information
– Williams v. Florida (case summary)» Alibis are not considered self-incriminating» Prosecution should be notified if the defendant
intends to plead not guilty by reason of insanity or self-defense
» Defense is not required to reveal if the defendant will testify
Discovery– Nonreciprocal Discovery
• There are some circumstances where the prosecution is required to supply information to the defense, but not vice-versa
– e.g. the prosecutor’s duty to disclose exculpatory evidence and to preserve evidence
– Brady v. Maryland» See case summary
Plea bargaining
• Involves negotiating on behalf of your client to get the best possible result weighing the risks of trial against what is being offered
• Most criminal cases do not go to trial but are pled out
Plea Bargaining and Guilty Pleas
• The majority of criminal convictions in the United States result from guilty pleas rather than trials– Usually the result of some “bargaining”
between the defense and prosecution– Both parties stand to gain something from a
guilty plea• The prosecutor obtains a conviction• The defense attorney can secure a “lesser”
conviction for their client
Plea Bargaining
• Plea bargaining is essential to the administration of justice
• It takes the administration of justice out of the hands of judges and juries– It essentially permits the attorneys to decide
the outcome of a case without the need to go to trial
Plea Bargaining• Defining Plea Bargaining
– There is no agreed-upon definition– It usually involves the defendant’s pleading
guilty to a lesser offense or to only some of the counts in a multi-count indictment• In return they may receive a lighter sentence• Charge bargaining refers to the prosecutor’s
ability to negotiate in terms of the charges• Sentence bargaining occurs when a defendant
pleads guilty for a lesser sentence
Plea Bargaining– Plea bargains must be intelligent and
voluntary• However, it may not be satisfactory for both parties
– Each bargain must be subject to court approval• However, the process is mostly carried on between
the defense and prosecution with little judicial review
– Other concessions may be offered to a defendant in return for a guilty plea
Plea Bargaining
• The History and Rise of Plea Bargaining– Cases referencing plea agreements go all the
way back to the 19th century
– Plea bargaining became even more common in the early to mid-1900s• Why the apparent rise in plea bargaining?
Plea Bargaining
• Arguments for and against Plea Bargaining– There are several arguments in support
• Plea bargaining benefits all members of the courtroom workgroup
• These are arguments concerning the benefits of reaching plea agreements
• In some cases, the costs of plea bargaining may outweigh the benefits
Plea Bargaining– The Benefits
• The prosecution has an increased ability to dispose of a busy caseload
• The defense benefits by allowing for the quick disposition of cases
• The court benefits as a prompt disposition of cases save on judicial resources
• The victim could benefit through the satisfaction of having the case closed quickly
Plea Bargaining– The Costs
• Criminal defendants lose their chance at an acquittal and other important rights
• Prosecutors tend to start the bargaining process at a “high” level
• Some argue that plea bargaining undermines the integrity of the criminal justice system
• Critics are also concerned that criminals receive lenient sentences
– At the other extreme, innocent individuals may be coerced to plead guilty
Plea Bargaining
• Attempts to Restrict Plea Bargaining– Concerns over plea bargaining have led some
jurisdiction to abandon the practice• e.g. the entire state of Alaska
– Other jurisdictions are looking to restrict plea bargaining• Impose cut-off dates• Banned for certain types of offenses• The jury waiver
Plea Bargaining
• The Supreme Court’s View on Plea Bargaining– The Supreme Court has sanctioned plea
bargaining• Brady v. United States
Plea Bargaining• The Plea Bargaining Process
– There are several different offers the prosecutor can make in an effort to secure a guilty plea• The most common is to reduce charges
– If the defendant accepts the offer:• They can plea “guilty”• They can plea nolo contendre
– Cannot be used as an admission of guilt in a subsequent civil case
Plea Bargaining– Constitutional Rights During Plea Bargaining
• The Sixth Amendment right to counsel applies since charges have already been filed
• Defense counsel must be effective during the plea negotiation process
– They must ensure that the client understands the consequences of the plea bargaining process
– Defendants also have the right to be informed of the exculpatory evidence the prosecution possesses
Plea Bargaining
• Once Agreement is Reached– Court Approval
• The court is not directly bound by a plea agreement
– The courts consider the views of the parties and the interest of the public
– If a plea agreement poses a significant risk to the public, the court has the discretion to deny it
» United States v. Bean
Plea Bargaining
• Factors Affecting Plea Agreements– Researchers have identified four:
• The strength of the state’s case• The seriousness of the offense
– This dictates whether the prosecutor will offer a reduced charge or recommend a lenient sentence
• The defendant’s prior record• Extra-legal factors that influence bargaining
– e.g. age, sex, attitudes, marital status, employment
Elements of the Plea
• Elements of Valid Guilty Plea– The judge must determine that the defendant
understands the plea– Knowing and voluntary– Not suffering from mental incapacity or the
influence of drugs or alcohol– Factual basis
Elements of the Plea– Intelligence and Understanding
• The defendant must understand:– The nature of the charge or charges for which he or she
is accused» Henderson v. Morgan
– The possible sentence or sentences associated with the charges
– The rights he or she may waive if a guilty plea is entered» Different than rights denied as a result of plea
bargaining (e.g. the right to vote)
Elements of the Plea– Voluntariness
• Even if a plea is understood, it could have resulted from coercion, threats, physical abuse or the like
– Factual Basis• The plea must result from conduct that has a basis
in fact– One cannot plead guilty to a crime one hasn’t committed
Guilty Plea
• Contesting a Guilty Plea– Reasons for contesting a guilty plea:
• The plea was a product of coercion by the prosecution
• The prosecution fails to fulfill its end of the bargain• Other problems such as unconstitutional conduct
on the part of law enforcement officials
Guilty Plea– Withdrawing a Guilty Plea
• If the court refuses to accept the plea agreement, the defendant can usually withdraw a plea
• If the defendant pleads guilty without plea bargaining, he or she can seek to withdraw the plea
– However, if the prosecution disagrees with the court’s decision to refuse the plea, the defendant may not be able to withdraw the plea
Guilty Plea• Once a plea is accepted by the court, it can only
be withdrawn in limited circumstances– Prior to trial, the defendant must show a “fair and just”
reason for overturning the plea» e.g. involuntary pleas, prosecutorial breaches, or
lack of evidence– Habeas review
• Once a sentence has been entered, the only methods to challenge a plea are:
– Appeal
Trial
• Can be tried by a judge, or by a jury• Strategy decision dependent on the
Judge, the type of crime• If jury trial is selected participation of
picking the jurors is critical to success
Criminal Law and the US Constitution
Criminal law in the United States is deeply rooted in the protections found in the US Constitution
Precedent
The legal principle that ensures that previous judicial decisions are used when considering present judicial cases
Ensured continuity and predictability
Gave legitimacy to the Courts, which leads to the people’s respect for the courts and the system
Stare decisis
Latin term meaning “to stand by things decided”
It is the formal term for when the courts would adhere to precedent in a decision
Following decisions
If the Pennsylvania Supreme Court issues a decision regarding some matter, then all the courts in Pennsylvania must follow it
If the Supreme Court of the United States issues a decision all courts must adhere to it
Prior decisions are rarely overturned
Other sources of Law besides Common Law
Legal Codes Written law
Administrative Regulations Government agency rules
Constitutions State and US
Legal Codes
Exist at different levels of the governmentComes in different formsUnited States Code..leads to federal
prosecutionState Code..leads to State prosecutionProvide important rights for people…laws
guaranteeing minimum wage for workers
Administrative Regulations
Rules made by government agenciesGet their authority from the executive or
legislative branches of governmentExamples, the IRS, the Department of Health
and Human ServicesTheir rules assist with their missionCode of Federal Regulation is the group of
rules adopted by the US Federal Agencies and departments
constitutions
Most significant source of lawPlace limits on governmental authorityBroadly define governmental structure and
organizationDefine the rights of the peopleImportant in the world of criminal law…much
case law exists on the interpretation of constitutional protections for the accused
Federal Constitution
Supreme law of the land
State constitutions mirror it
State constitutions usually more detailed
Bill of Rights
First Ten amendments to the US Constitution
Represents important limitations on government authority in the criminal justice arena
Working together
Constitutions work together with legal codes, administrative regulations and the common law to provide the basis for criminal justice in the United states
Role of the Courts
Role of the courts in criminal justice Adjudication oversight
Adjudication
In criminal law this deals with who is going to answer for an alleged criminal act
The courts vital function is deciding who is guilty and who is not guilty
Appellate courts make sure the lower courts applied the law correctly
Appellate review holds judges responsible for incorrectly applying the law
Oversight
Oversee the operations of criminal justice officials
Consists of appellate review of cases that come before it
Published opinions alter the way criminal justice officials do their work
Example…Tennessee v. Garner a Supreme Court case which spelled out when law enforcement can use deadly force
Protection of Individuals
Includes all individuals within our borders, including illegal aliens, criminals
Courts are open to allCertain presumptions exist for allImportant in the criminal justice arenaProtect the accused
Constitutional Rights
Found at federal and state levelsCriminal law dependent on the Bill of rights,
particularly: 4th Amendment 5th Amendment 6th Amendment 8th Amendment 14th Amendment
4th Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”
4th Amendment
People are to be free from unreasonable searches and seizures
Specific requirements must exist for the issuance of a warrant Warrants are to be issued by a magistrate Supported by probable cause Must specify what is to be searched and seized
5th Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jepoardy of life or limb; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law..”
5th Amendment
Use of grand juriesNo one can be forced to incriminate
themselvesPeople cannot be put in double jeopardyAssurance of due process
6th Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
6th Amendment
Speedy trial rights, 365 days to bring an accused to trial
Impartial juriesOpen, public trialsRight to counsel and witnesses
8th Amendment
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.
8th Amendment
Reasonable bail ensures that people are not remaining needlessly in jail until trial
Sometimes, even today, accused will remain in jail because they cannot afford the bail set….and end up being in jail longer than their sentence!
The punishment must not be torturous
14th Amendment
“No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
14th Amendment
Mirrors the due process of the 5th Amendment
Makes it applicable to the statesDue process
Substantive-concerned with protecting people’s life, liberty and property interests
Procedural-concerned with ensuring fairness
Our Adversarial System
Pitting two parties against one another in the pursuit of truth
In criminal law it is the defense attorney against the prosecutor
This system promotes argument, debate and openness
Its opposite is an Inquisitorial system
Inquisitorial system
Less rights for the accused (right to counsel)Power in the hands of fewUsually no juryAttorneys have nominal rolesJudges are fact-finders, not just legal
interpreters
Types of disputes
Civil Law Concerned with disputes between private parties and
the duties owed to one another Remedies can be monetary Injunctive relief Civil cases far outnumber criminal cases Includes tort law, contract law, property law, law of
succession, family law
Criminal Law
Often initiated by the government, but can be done by private individuals as well (private criminal complaint)
Receives punishment at the conclusionPunishment can take many forms..fines,
incarceration, community service, probation, house arrest
Definition of a Crime
Any conduct in violation of the criminal laws of the federal, state or local jurisdiction for which there is no legally acceptable justification or excuse
Legislatures define what is criminalIt is against society..sends the message that
the action is unacceptable to everyone, not just the victim
Are all crimes harmful?
Definition of crime does not require them to be “harmful”, example…in Washington State it is illegal to walk around with the common cold
Categories of CrimesBased on possible punishment
Felonies-serious offenses generally punishable by more than one year of incarceration, include serious offenses like rape, murder, armed robbery
Misdemeanors-less serious and generally have prison terms less than one year (usually never get prison) includes public drunkenness, illegal gambling
Infractions-violations of local or state statute, punishable by fine, but not jail time..curfew violation, driving while on cell phone
Elements of a crime
Corpus delicti-Latin for “body of crime”, literally means a dead body, but refers to the objective proof of a crime. A crime has to have been committed to hold someone responsible
Actus reus-Latin for “the criminal act”, the person has to have committed a criminal act
Mens rea-Latin for “guilty mind”, the offender must have intent
The Miranda Rule
Police must give Miranda warnings before interrogating a suspect who is in custody, and the suspect must waive his Miranda rights, or statements made by the suspect will not be admissible at trial. Miranda v. Arizona (1966).
right to remain silent (5th Amendment privilege against self-incrimination)
right to an attorney (6th Amendment right to counsel)
What is Interrogation
For Miranda purposes, interrogation occurs “whenever a person in custody is subject to either express questioning or its functional equivalent.” Rhode Island v. Innis (1980).
Miranda only applies when the subject is “in custody.”
CLARIFICATION: Generally, for Miranda purposes, a suspect is in custody when a reasonable person in their situation would not believe that they were free to leave
Am I being interrogated?
The Miranda rule only applies where there has been an interrogation. CLARIFICATION: By “functional equivalent,” the
Court explained in Innis, it meant “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the subject.”
Custodial Interrogation
·What is a custodial interrogation?·When and how can it occur?·When can statements made during a
custodial interrogation be admissible
Your 5th Amendment rightsMiranda v. Arizona
Before any “Custodial Interrogation,” the police must inform you of the following:
You have a right to remain silent. Anything you say can and will be used against
you in a court of law. You have the right to an attorney, either retained
or appointed.
What does “Custodial Interrogation” mean?
This means that you have been taken into custody or otherwise deprived of your freedom of action.
In other words, if the police arrest you, or if you aren’t allowed to leave the place of questioning.
What if I answer some questions, but then want a lawyer?
If you decide to have a lawyer present during
questioning, then the police must stop questioning you until the lawyer gets there.
Judges, prosecutors and defense attorneys make up the courtroom workgroup
Two important, but less visible, figures are the victim and the offender Several advances in recent years ensure that victims
are not ignored Most criminal defendants are relatively unknown
persons, a “nobody”
Defendant Characteristics
Who is the typical defendant? Overwhelming majority of crimes are committed by
males Especially true of murder, rape, and weapon offenses Much more equality across the sexes for fraud and
forgery Two crimes committed more frequently by females are
child abuse and infanticide
Defendant Characteristics
There are more black than white defendants Offenses where there are more white than black
defendants include motor vehicle theft There are more black defendants than white defendants
for crimes of violence Most offenses are committed by people older than 40
years of age Specific crimes like robbery are committed mostly by
young people
Right to Counsel
The Right to Counsel Three constitutional provisions govern the defendant’s
right to counsel Fourteenth Amendment Due Process
1932 Powell v. Alabama Several poor defendants were not represented by
counsel at their trial The Supreme Court argued that defendants’ due
process rights were violated
Right to Counsel
The Sixth Amendment Right to Counsel 1938 Johnson v. Zerbst and 1942 Betts v. Brady
The Supreme Court recognized the right to counsel in federal prosecutions
Changed in 1963 with Gideon v. Wainwright Argersinger v. Hamlin, the Court extended the right to
counsel to misdemeanor cases The Lasting Impact of Gideon v. Wainwright (1963)
5th Amendment and Right to Counsel
The Fifth Amendment and Self-Incrimination Provides that no person “shall be compelled…to be a
witness against himself” Miranda v. Arizona
Applies only during police-citizen encounters that amount to custodial interrogation
Counsel has requirements
Effective Assistance of Counsel Defense representation must be effective for the Sixth
Amendment to be satisfied Only applies where the right to counsel applies
e.g. Does not apply to a defense attorney’s failure to file a timely discretionary appeal
Ineffective assistance claims can be filed against both retained and appointed counsel Cuyler v. Sullivan
Effectiveness of counsel
When is Counsel Effective? The Supreme Court first tried to answer this question in
1970 with McMann v. Richardson Standard was a little vague
The Supreme Court provided clarification with Strickland v. Washington Created a two-pronged test for determining effective
assistance of counsel1) The defendant must show that counsel’s
performance was deficient (“performance prong”)2) Must also show that the deficient performance
prejudiced the defense (“prejudice prong”)
Ineffective counsel
When is Counsel Ineffective? In Bell v. Cone
Held that a D.A.’s failure to present any mitigating evidence or make a closing statement didn’t qualify as ineffective assistance
Rompilla v. Beard Held that defense counsel is bound to make reasonable
efforts to obtain and review material it knows prosecution will probably use
Florida v. Nixon Defense strategy of acknowledging the client’s guilt
was not deemed ineffective
Can a Defendant represent themselves? YES
The Pro Se Defense Criminal defendants have a constitutional right to
represent themselves at trial Not every defendant is allowed to proceed without
counsel Johnson v. Zerbst
In certain cases, the court can require that standby counsel be available to the defendant McKaskle v. Wiggins
Can they hand pick their lawyer?
Counsel of the Defendant’s Choice? The Sixth Amendment does not guarantee the
indigent defendant permission to choose counsel But if an indigent defendant can show that they are not
being represented adequately, another attorney can be appointed
Even if a defendant can afford counsel, there may be reasons that they may be forced to hire another attorney
Can they hire experts?
Another issue if whether indigent defendants can retain expert witnesses of their own choosing Ake v. Oklahoma
The Supreme Court held that indigent defendants enjoy a constitutional right to expert witness when the defendant’s sanity is at issue
However, this is limited to providing only one expert, and the expert is state-employed
Right to be there
Confrontation The Defendant’s Right to be Present
The defendant has the right to be physically present but also mentally competent
Physical Presence Illinois v. Allen suggest that the accused has the right
to be present In cases after Allen, the Court placed restrictions on
physical presence:1) Only during “critical” proceedings2) Can be voluntary waived or forfeited
Competency
Mental Competence: The conviction of an “incompetent” person is
unconstitutional Due process is violated when a defendant cannot
understand what is happening to him in a criminal trial Dusky v. United States
• The burden of proving incompetence falls on the defendant Pate v. Robinson
• Competency is considered in a separate pre-trial hearing
Confronting their accusers
The Defendant’s Right to Live Testimony The defendant has the right that witnesses physically
appear in the courtroom to give their testimony Mattox v. United States asserts that the defendant’s
right to live testimony is subject to exceptions• e.g. the witness is deceased or in the hospital
Witness testimony can be introduced by a 3rd party• Known as hearsay• Generally not admissible in criminal trials• Several exceptions to the hearsay rule
Hearsay exceptions
Present sense impression. A statement describing or explaining an event or condition made while the declarant [person making the statement] was perceiving the event or condition, or immediately thereafter.
Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment
Right to Challenge
The Defendant’s Right to Challenge Witness Testimony Cross examination is, for example, when the state has
the opportunity to cross-examine the state’s witness Scope of direct rule
Limited to matters covered on direct examination Inquiries into the credibility of the witness are also
permissible
To take the Stand or Not?
The “Dark Side” of Confrontations If the defendant refuses to take the stand and testify, a
jury may believe the defendant has something to hide The defendant’s presence in the courtroom may remind
jurors of the crime
How important is the Defendant?
The Defendant’s Marginal Role The defendant generally sits idly by while the court
process plays out Defendants are mostly at the mercy of their attorneys
An undereducated defendant may have difficulty understanding court events
Many defendants are distrustful of authority figures, even their own attorneys
VICTIMS
The rights and privileges in our constitutions benefit everyone, not just the criminal element Crime victims, however, do not benefit from
protections like right to counsel The crime victim’s role in the court process tends to
be quite marginalThe Lasting Impact of People v. Goetz (1988
Victim-Offender Relationships Most crimes are not “random”
GET SOME STATS FROM BOOKWho victims are
Victims
Victim Images and Attitudes Victim Attitudes Toward the Courts
Issues victims face in the court process include dealing with delays and securing services
Victims want to be involved in some capacity Court Impressions of Victims
Difficulty in securing testimony and cooperation from victims e.g. domestic violence cases
Victims and the Courts
Victim Involvement There has been a push toward more victim
involvement in recent years The Lasting Impact of Payne v. Tennessee (1991)
The Movement to Get Victims Involved Beginning in the 1970s, victim groups started to organize Interest groups also gave the victims rights movements a
voice e.g. MADD
Victims Rights
The victims rights movement has been responsible for at least two major changes: Assistance to victims
• e.g. shelters and financial assistance The emergence of victim rights
• e.g. A “voice” in the sentencing phase Victims Assistance
The 1984 Victims of Crime Act Services without criminal justice involvement Victim compensation programs
Victims Rights
Other Victim Remedies Victims can sue for monetary damages Victims can seek restraining orders
Censorship Has the victims rights movement run its course? Courts are prohibiting witnesses and victims from using
“hot-button” words e.g. “rape”, “victim”, “murderer”, “crime scene”
ARREST and BEYOND
Probable causeExclusionary rulePretrial procedures ChargingArraignmentDiscovery
Introduction
Arrest occurs after the police: Develop probable cause Obtain an arrest warrant
The arrest process is important because it is the gateway to the entire system
After the arrest, there are several important steps in the criminal process
Arrest
Definition: the taking of an individual into physical custody by authority of law for the purpose of charging them with a criminal offense
Arrest
Important safeguards are put in place during arrest because people are losing their freedom, can be searched and property seized
Want to make sure that there is proper justification for this arrest so that innocent people are not subjected to this intrusion
Arrests have to be based on probable cause
Probable Cause
The key requirement for an arrest is that it be based on probable cause Probable cause exists below absolute certainty and
above a reasonable suspicionProbable cause is important because, without
it, an arrest or search will be considered deficient
Reasonable man would believe the suspect committed the offense
Why do we care about Probable Cause?
It is important because without it an arrest or search is considered improper and an improper can result in a guilty criminal going free or in evidence that cannot be used
WHY? The Exclusionary Rule!
Exclusionary Rule
Evidence obtained in violation of the Constitution during an illegal arrest, search or other process, cannot be used in a criminal trial The Constitution does not specify how this right is to
be enforced Boyd v. United States Weeks v. United States Silverthorne Lumber Co. v. United States
Exclusionary Rule
The Lasting Impact of Mapp v. Ohio Arguments for and against the Rule
The debate surrounding the exclusionary rule centers on three important issues: Whether the rule deters police misconduct Whether the rule imposes unnecessary costs on society Whether alternative remedies are effective and should
be pursued
Exclusionary Rule
Exceptions to the Exclusionary Rule The good faith exception
when police officers make an honest and “good faith” mistake during searches and seizures, subsequently obtained evidence can be admissible
The impeachment exception If the prosecution seeks to use evidence for the
purpose of impeaching a witness, it will be considered admissible for that purpose• Walder v. United States
Exclusionary Rule
Extensions of the Exclusionary Rule The fruit of the poisonous tree doctrine
The Silverthorne Lumber Co. was convicted on contempt charges for failing to produce documents during the course of an illegal search• The Court reversed the conviction
The Supreme Court has also taken steps to limit the doctrine• Independent source exception• Inevitable discovery exception• Purged taint exception
Initial Appearance
Once a person is arrested and booked, they are brought before a magistrate The initial appearance is designed to serve a
number of purposes In Gernstein v. Pugh, the Court ruled that a probable
cause hearing is required either before or promptly after arrest
Booking
At this stage the defendant’s identity is obtained and recorded
The time and details of the arrest are set forth
Suspect’s personal items are inventoried and stored
Suspect’s photograph and fingerprints are taken
Suspect is placed in holding cell
Pretrial Release
An arrestee is eligible if they do not pose a significant risk of flight The Eighth Amendment states that “excessive bail
shall not be required” Protection against excessive bail does not apply to the
states Pretrial Release Hearing
Stack v. Boyle United States v. Salerno
Pretrial Release
Bail: money or property pledged by the defendant to be released pending his trial; such money or property guaranteeing his release
In the even the defendant fails to appear such property would be forfeited
Bail is usually not granted in capital offenses (murder)
Common types of Bail
Cash Bail: The defendant, or someone else on the defendant's behalf, pays the full bail amount out of pocket.
Secured Bail: The defendant must pay a specified amount or post security in order to be released. Security can include property.
Unsecured Bail: The defendant is not required to pay money but must sign a bond guaranteeing that he or she will return for future court appearances. A fine is imposed if the defendant fails to appear.
Conditional Bail: In lieu of paying cash, the defendant is ordered to satisfy some specific condition (e.g., complete drug treatment) in exchange for being released before trial.
Release on Recognizance: The defendant is not required to pay money but must sign a bond guaranteeing that he or she will return for future court appearances
Pretrial Release
The bail decision can be problematic Judges set bail according to the nature of the offense in
question, not according to the accused’s ability to pay If the defendant cannot afford to post bail, he or she
may turn to a professional bail bondsman• The bondsman system gives power to private citizens to
determine who gets released or who stays in jail• A number of alternative bail release mechanisms have
been developed
Pretrial Release
Release on Recognizance The accused is released with the assumption that he or
she will show up for scheduled court hearings• Reserved for individuals posing a minimal risk of flight
Manhattan Bail Project The Bail Reform Act
Preventive Detention Denial of bail to “dangerous” persons charged with
certain offenses for up to 60 days Federal Bail Reform Act of 1984
Pretrial Release
The Bail Decision Flight Risk
Stack v. Boyle Courts in the News: Bounty Hunters
Dangerousness Courts can deny bail or set the amount relatively high
due to perceived dangerousness Financial Status
Courts often take into account the accused’s financial status in making a bail decision
Charging the Defendant
Charging in Grand Jury Jurisdictions The Framers of the Fifth Amendment favored grand
jury indictments A clear sentiment among the framers that government
should be kept in check Over time, the grand jury has become highly
dependent on the actions of the prosecutor
Charging the Defendant
Grand Jury Composition People are selected for grand juries through subpoena
A list of potential grand jury members is complied• Known as the “venire”
People are selected from the list to serve Special steps need to be taken to ensure the list of
potential grand jurors is fair and impartial Grand jury size and voting requirements vary by state
Charging the Defendant
Grand Jury Proceedings Intensely secretive
United States v. Rose Grand jury proceeding disclosure to the defense is rare Grand juries have significant investigative authority
Can subpoena witnesses and documents Can hold uncooperative witnesses in contempt Can extend grants of immunity to witnesses in
exchange for their testimony
Charging the Defendant
The Indictment The grand jury’s charging document
The prosecutor presents the government’s case to the grand jury members
The grand jury takes a vote on whether or not there is enough evidence to merit a criminal charge
A sufficient number of votes will “return an indictment” (also known as a true bill)
The true bill is delivered to the court• Can sometimes be “sealed” in order to keep the charges
from the defendant
Charging the Defendant
The Preliminary Hearing In lieu of an indictment, prosecutors may opt to
charge by information If the prosecutor charges via information, a preliminary
hearing may be necessary The preliminary hearing is intended to prevent
malicious prosecution and ensure there are substantial grounds for prosecution
Charging the Defendant
The Constitution does not require a preliminary hearing Whether a preliminary hearing is required typically
depends on a jurisdiction’s method of filing criminal charges A prosecutor can secure an indictment or proceed by
information Accused individuals can, and often do, waive their
preliminary hearings
Charging the Defendant
The Probable Cause Requirement The prosecutor has the burden of proving that the case
be handed over to a grand jury or go to trial Procedural Issues
The finding of probable cause may be based on hearsay evidence
The exclusionary rule does not “technically” apply in preliminary hearings
There are restrictions to cross-examining witnesses
Charging the Defendant
Double Jeopardy Double jeopardy occurs when, for the same offense, a
person is: Re-prosecuted after acquittal Re-prosecuted after conviction Subjected to separate punishments for the same offense
Double jeopardy does not apply in separate sovereigns
Charging the Defendant
The Blockburger Rule A complicated issue concerns the definition of “same
offense” Blockburger v. United States
The Supreme Court developed a test to determine if there were two offenses or only one
Became known as the Blockburger Rule• Two offenses are considered separate if each offense
requires proof of an element the other does not
