131 terms
Criminal Justice Exam 3
plea negotiations/ plea bargaining
discussion between defense counsel and prosecution in which the accuses agrees to plead guilty in exchange for certain considerations, such as reduced charges or a lenient sentence
courts of limited jurisdiction
a court that has jurisdiction over misdemeanors and conducts preliminary investigations of felony charges (misdemeanor criminal infractions, violations of municipal ordinances, traffic violations, civil suits where the damages involves less than a certain amount of money)
- in addition to their trial work, limited jurisdiction courts conduct arraignments, preliminary hearings, and bail hearings in felony cases
- in addition to their trial work, limited jurisdiction courts conduct arraignments, preliminary hearings, and bail hearings in felony cases
specialized courts
a court the has primary jurisdiction over specific types of offenses and that operates differently than a traditional criminal court, such as with a concern over outcome and extensive judicial monitoring, informed decision making, collaboration, non-traditional roles, systemic change
- drug courts
- mental health courts
- community courts, domestic violence courts
- other specialized courts
- drug courts
- mental health courts
- community courts, domestic violence courts
- other specialized courts
courts of general jurisdiction
a state or federal court that has jurisdiction over felony offenses, serious crimes that carry a penalty of incarceration in a state or federal prison for one year or more
- variously called felony superior, supreme, country, and circuit courts
- variously called felony superior, supreme, country, and circuit courts
appellate courts
a court to which appeals are made on points of law resulting from the judgement of a lower court; the appellate court may be asked to evaluate the impact of new evidence but more typically decides whether the state or federal constitution was improperly interpreted during a case
model state court structure
1) every state has a tired court organization (lower, upper, and appellate courts), but states differ in the way they have delegated responsibility to a particular court system
2) model
- state supreme court
- intermediate appellate courts
- superior court
- country court
- justice of the peace court
2) model
- state supreme court
- intermediate appellate courts
- superior court
- country court
- justice of the peace court
US district court
a trial court in the federal court system
- citizens who reside in separate states and are involved in litigation of an amount in excess of $10,000 may choose to have their cases heard in the state or in the federal court
- citizens who reside in separate states and are involved in litigation of an amount in excess of $10,000 may choose to have their cases heard in the state or in the federal court
types of district courts
1) trial courts of the federal system
2) civil rights
3) interstate transportation of stolen vehicles
4) kidnapping
5) citizenship
6) rights of aliens
2) civil rights
3) interstate transportation of stolen vehicles
4) kidnapping
5) citizenship
6) rights of aliens
federal appeals courts
1) the US court of appeals - an appellate court in the federal court system (13 in the US)
2) the circuit court is empowered to review federal and state appellate court cases on substantive and procedural issue involving rights guaranteed by the constitution
2) the circuit court is empowered to review federal and state appellate court cases on substantive and procedural issue involving rights guaranteed by the constitution
The US Supreme Court
1) the highest appellate court in the US
2) judges appointed by the president and approved by congress
3) only court established by the constitution
4) It chooses around 300 of the 5,000 cases that are appealed each year; fewer than half of these were typically will receive full opinions
5) when the supreme court rules on a case, usually by majority opinion, the outcome becomes precedent that must be honored by all lower courts
2) judges appointed by the president and approved by congress
3) only court established by the constitution
4) It chooses around 300 of the 5,000 cases that are appealed each year; fewer than half of these were typically will receive full opinions
5) when the supreme court rules on a case, usually by majority opinion, the outcome becomes precedent that must be honored by all lower courts
court of last resort
a court that handles the final appeal on a matter, in the federal system, the US supreme court
how a case gets to the supreme court
1) federal or state trial court cases
2) federal courts or state supreme court
3) decision making
4) discretionary decision (special circumstances), mandatory decision (hears direct statutory appeals in which the state is in conflict with the federal law or constitution, and original jurisdiction disputes between states)
5) dissent/ minority opinion
6) concurring opinion means that justice agrees with majority but for different reasons
7) pre-screening (discussion of the case list)
8) decision making conference by the justices
9) full judicial decision by the US supreme court
2) federal courts or state supreme court
3) decision making
4) discretionary decision (special circumstances), mandatory decision (hears direct statutory appeals in which the state is in conflict with the federal law or constitution, and original jurisdiction disputes between states)
5) dissent/ minority opinion
6) concurring opinion means that justice agrees with majority but for different reasons
7) pre-screening (discussion of the case list)
8) decision making conference by the justices
9) full judicial decision by the US supreme court
Martin v. Hunter's Lessee (1816)
the court reaffirmed the legitimacy of its jurisdiction over that court decisions when such courts handled issues of federal or constitutional law
- this decision allowed the Court to actively review actions by states and their courts, reinforced the Courts power to make the supreme law of the land
- this decision allowed the Court to actively review actions by states and their courts, reinforced the Courts power to make the supreme law of the land
writ of certiorari
an order of a superior court requesting that a record of an inferior court be brought forward for review or inspection
rule of four
the convention that four justices must agree to hear a case before a writ of certiorari is granted
various reasons court congestion is undesirable
1) it makes people wait too long for resolution
2) it costs too much money
3) too much delay can violate the 6th amendments provisions concerning the right to a speedy trial
2) it costs too much money
3) too much delay can violate the 6th amendments provisions concerning the right to a speedy trial
why as the court system become so congested
1) rapid increase in population
2) complex laws
3) prosecuting petty crimes as a crime control measure
4) increase in civil litigation
5) aggressive prosecutions
6) reform efforts
2) complex laws
3) prosecuting petty crimes as a crime control measure
4) increase in civil litigation
5) aggressive prosecutions
6) reform efforts
judge
a senior officer in a court of law, who is authorized to hear and decide cases
duties of the judge
1) rules on the appropriateness of conduct
2) settle questions of evidence and procedure
3) guides the questioning of witnesses
4) instruct jurors
5) decides cases
6) sentencing
2) settle questions of evidence and procedure
3) guides the questioning of witnesses
4) instruct jurors
5) decides cases
6) sentencing
other judicial functions
1) the trial judge has extensive control and influence over the other agencies of the court:
- probation
- the court clerk
- court reporters
- the public defender
- DAs office
2) police and prosecutors are also directly influences by the judge, whose sentencing discretion affect the arrest and charging process
3) the judge consider requests by police and prosecutors for leniency or security in sentencing
- probation
- the court clerk
- court reporters
- the public defender
- DAs office
2) police and prosecutors are also directly influences by the judge, whose sentencing discretion affect the arrest and charging process
3) the judge consider requests by police and prosecutors for leniency or security in sentencing
alternatives to judges
1) retired judges
2) neutral judges
3) referees
4) magistrates
5) part time judges
2) neutral judges
3) referees
4) magistrates
5) part time judges
alternative dispute resolution
a means of settling disputes outside the courtroom
arbitration
a process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties agree to be heard
mediation
an informal dispute resolution process in which a neutral third party (mediator) helps disputing parties reach an agreement
Missouri plan
a method of judicial selection that combines a judicial nominating commission, executive appointment, and nonpartisan confirmation elections
judicial decision making
1) researchers have long found that judges decisions are influenced by factors such as their ideology, their attitudes toward certain individuals, whether they face re-election, public opinion, and basic demographics characteristics such as the judges race or sex
prosecutor
an appointed or elected member of the practicing bar who is responsible for bringing the states case against the accused
proprietorial duties
1) enforcing the law
2) representing the government
3) maintaining proper standards of conduct as an attorney and court officer
4) developing programs and legislation for law and criminal justice reform
5) being a public spokesman for the field of law
2) representing the government
3) maintaining proper standards of conduct as an attorney and court officer
4) developing programs and legislation for law and criminal justice reform
5) being a public spokesman for the field of law
recommendations for prosecutors who find themselves investigating child abuse cases
1) limit the number of prosecutors who investigate such cases
2) involve the prosecutor early in the case
3) set up one or more child friendly interview rooms, for example, a sketch board and anatomical dolls should be available
4) interviewers should be trained in the art/ science of questioning possible victims of child abuse
2) involve the prosecutor early in the case
3) set up one or more child friendly interview rooms, for example, a sketch board and anatomical dolls should be available
4) interviewers should be trained in the art/ science of questioning possible victims of child abuse
project safe neighborhoods
a gun violence prosecution program that teamed the US attorney's office with their local counterparts
white collar crime
well publicized corporate scandals involving billion dollar companies such as Enron and WorldCom may be prompting proprietorial action
high tech crimes
the federal government operate a number of organizations that coordinate efforts to prosecute high tech crimes, including cyber crimes
environmental crime
environmental crime prosecution, a field that mixes elements of the law, public health, and science, has also emerged as a new area of specialization
United States attorneys
the nations principal (federal) litigators, appointed by the president
- assistant united states attorneys are tasked with, among other duties, prosecuting criminal defendants in federal court
- assistant united states attorneys are tasked with, among other duties, prosecuting criminal defendants in federal court
attorney general
the chief legal officer and prosecutor of each state and of the United States
the prosecutor within society
1) criticisms
- bargain away justice
- political office
- failure to investigate crime
2) response to criticisms
- aggressive towards certain crime
- bargain away justice
- political office
- failure to investigate crime
2) response to criticisms
- aggressive towards certain crime
the prosecutor and law enforcement
1) the police investigation report
2) providing legal advice
3) training police personnel
2) providing legal advice
3) training police personnel
the exercise of prosecutor discretion
1) system factors
2) case factors
3) disposition factors
4) political factors
2) case factors
3) disposition factors
4) political factors
prosectutorial discretion
the prosecutors authority to decide whether to bring a case to trial to dismiss it out right
nolle prosequi
the decision by a prosecutor ti drop a case after a complaint has been made because of, for example, insufficient evidence, witness reluctance to testify, police error, or office policy
grand jury
a group of citizens chosen to hear charges against a person accused of crime and to determine whether there is sufficient evidence to bring those persons to trial
systems factors (prosecution discretion)
1) in determining what course of action to take, the prosecutor has a significant effect on the criminal justice system
2) effective screening by the prosecutor can eliminate from the judicial system many cases in which convictions cannot be reasonable, be obtained or that may be inappropriate for criminal action, such as petty thefts, minor crimes by first offenders, and criminal acts involving offenders in need of special services
2) effective screening by the prosecutor can eliminate from the judicial system many cases in which convictions cannot be reasonable, be obtained or that may be inappropriate for criminal action, such as petty thefts, minor crimes by first offenders, and criminal acts involving offenders in need of special services
case factors (prosecutor discretion)
1) the attitude of the victim
2) the avoidance of undue harm to the suspect
3) the availability of alternative procedures
4) the availability of civil sanctions
5) the willingness of the suspect to cooperate with law enforcement authorities
6) evidence also indicates that the relationship between the victim and the criminal may greatly influence whether a prosecutor wished to pursue a case
7) convertibility is another factor that shapes prosecurial discretion
2) the avoidance of undue harm to the suspect
3) the availability of alternative procedures
4) the availability of civil sanctions
5) the willingness of the suspect to cooperate with law enforcement authorities
6) evidence also indicates that the relationship between the victim and the criminal may greatly influence whether a prosecutor wished to pursue a case
7) convertibility is another factor that shapes prosecurial discretion
disposition factors (prosecutor discretion)
1) in determining which cases should be eliminated for the criminal process and which should be brought to trial, the prosecutor has the opportunity to select alternative actions if they are more appropriate
2) diversion
2) diversion
diversion
the use is an alternative to trial, such as referral to treatment or employment programs
political factors
1) the prosecutor is a political figure, typically elected to office, whose discretion may be shaped by public necessities
2) public outrage
3) media scrutiny
4) lobbying efforts
2) public outrage
3) media scrutiny
4) lobbying efforts
defense attorney
legal counsel for the defendant in a criminal case, representing the accused person for arrest to final appeal
3 most difficult problems involving the professional responsibility of the criminal defense lawyer
1) is it proper to cross examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth
2) is it proper to put a witness on the stand when you know he will commit perjury
3) is it proper to give your client legal advice when you have reason to believe that the knowledge you giver him will tempt him to commit perjury
2) is it proper to put a witness on the stand when you know he will commit perjury
3) is it proper to give your client legal advice when you have reason to believe that the knowledge you giver him will tempt him to commit perjury
ethical issues of the defense attorney
as an officer of the court, along with the judge prosecutor and other trial participants, the defense attorney seek to uncover the basic fact and elements of the criminal act
functions of the defense attorney
1) investigating the incident
2) interviewing the client, police, and witnesses
3) discussing the matter with the prosecutor
4) representing the defendant at the various pretrial procedures, such as arrest, interrogation, lineup, and arraignment
5) entering into plea negotiations
6) preparing the case for trial including developing tactics and strategy
7) filing and arguing legal motions with the court
8) representing the defendant at trial
9) providing assistance at sentencing
10) determining the appropriate basis for appeal
2) interviewing the client, police, and witnesses
3) discussing the matter with the prosecutor
4) representing the defendant at the various pretrial procedures, such as arrest, interrogation, lineup, and arraignment
5) entering into plea negotiations
6) preparing the case for trial including developing tactics and strategy
7) filing and arguing legal motions with the court
8) representing the defendant at trial
9) providing assistance at sentencing
10) determining the appropriate basis for appeal
areas in the criminal justice system where the courts have not required assistance of counsel for the accuses
1) pre-indictment lineups
2) booking procedures
3) grand jury investigations
4) appeals beyond the first review
5) disciplinary - proceedings in correctional institutions, and post release revocation hearings
2) booking procedures
3) grand jury investigations
4) appeals beyond the first review
5) disciplinary - proceedings in correctional institutions, and post release revocation hearings
indigent defendant
a defendant who lacks the funds to hire a private attorney and is therefore entitled to free counsel
assigned counsel
a private attorney appointed by the court to represent a criminal defendant who cannot afford to pay for a lawyer
public defender
an attorney employed by the government to represent criminal defenders who cannot afford to pay for a lawyer
the general lack of defense services for indigents traditionally stemmed from the following causes, among others
1) until fairly recently, laws of most jurisdiction did not require the assistance of counsel for felony offenders and others
2) only a few attorneys were interested in criminal law practice
3) the organized legal bar was generally indifferent to the need for criminal defense
4) financial resources for courts and defense programs were limited
2) only a few attorneys were interested in criminal law practice
3) the organized legal bar was generally indifferent to the need for criminal defense
4) financial resources for courts and defense programs were limited
recoupment
process by which the state later recovers some or all of the cost of providing legal counsel to an indigent defendant
assigned counsel system
1) in contrast to the public defender system, the assigned counsel system involved the use of private attorneys appointed by the court to represent indigent defendants
2) the private attorney is selected from a list of attorneys, maintained by the court and is reimbursed by the state for any legal services rendered to the client
2) the private attorney is selected from a list of attorneys, maintained by the court and is reimbursed by the state for any legal services rendered to the client
2 main types i assigned counsel systems
1) ad hoc assigned counsel system - the presiding judge appoints attorneys on a case by case basis
2) coordinated assigned counsel system - an administrator oversees the appointment of counsel and sets up guidelines for the administration of indigent legal services
2) coordinated assigned counsel system - an administrator oversees the appointment of counsel and sets up guidelines for the administration of indigent legal services
contract system
provision of legal services to indigent defendants by private attorneys under contract to the state our county
private v. public attorneys
1) conviction rate for indigent defendants and those with their own lawyers were about the same in state and federal courts
2) of defendants found guilty, however, those represented by the publicly financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation
3) on average, sentence lengths for defendants sent to jail or prison were shorter for those with publicly financed attorneys then for those who hired counsel
4) the data indicates that private counsel may have a slightly better track record in some areas but the court appointed lawyers do quite well
2) of defendants found guilty, however, those represented by the publicly financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation
3) on average, sentence lengths for defendants sent to jail or prison were shorter for those with publicly financed attorneys then for those who hired counsel
4) the data indicates that private counsel may have a slightly better track record in some areas but the court appointed lawyers do quite well
pro bono
the practice by the private attorneys of taking the cases of indigent offenders without fee as a service to the profession and the community
the informal justice system
1) what has emerged is a system in which plea bargaining predominates because little time and insufficient resources are available to give criminal defendants a full scale defense
2) moreover, because prosecutors are under pressure to win their cases, they are often more willing to work out a deal than to pursue a case trial
3) the informal criminal justice system revolves around the common interest of its member to move the case along and settle matters
2) moreover, because prosecutors are under pressure to win their cases, they are often more willing to work out a deal than to pursue a case trial
3) the informal criminal justice system revolves around the common interest of its member to move the case along and settle matters
subpoena
a court order requiring a witness to appear in the court at a specified time and place
pretrial procedures
legal and administrative actions that take place after arrest and before trial, including grand jury indictment, preliminary hearing, bail, and plea negotiations
complaint
a sworn written statement addressed to a court or judge by the police, prosecutor, or individual alleging that an individual has committed an offense and requesting indictment or prosecution
arraignment
initial trial court appearance, at which the accused is read the charges, advised of his or her right and asked to enter a plea
bail
1) the monetary amount required for pretrial release, normally set by a judge at the initial appearance. the purpose of bail is to ensure the return of the accused at subsequent proceedings
2) bail cannot be used to punish the accused, and it cannot be denied or revoked at the indulgence of the court
3) bail is a critical stage in the justice process and a key ingredient of a fair and equitable adjudication process: it enable people charged with a crime to be free in the community in order to prepare a defense to the states criminal charges
2) bail cannot be used to punish the accused, and it cannot be denied or revoked at the indulgence of the court
3) bail is a critical stage in the justice process and a key ingredient of a fair and equitable adjudication process: it enable people charged with a crime to be free in the community in order to prepare a defense to the states criminal charges
the legal right to bail
1) congress passed the Judiciary Act of 1789: upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death in which cases, bail shall not be admitted
2) bail was also incorporated into the 8th amendment but only insofar as it prohibits excessive bail. The 8th amendments excessive bail clause may be interpreted to mean that the sole purpose of bail is to ensure the defendant returns for trial; bail may not be used as a form of punishment or to coerce or threaten a defendant
3) supreme court: Stack v. Boyle 1951 - the court held that bail is excessive when it exceeds an amount reasonable calculated to ensure that the defendant will return for trial, if a crime is bailable, the amount set should not be frivolous, unusual, or beyond a persons ability to pay
2) bail was also incorporated into the 8th amendment but only insofar as it prohibits excessive bail. The 8th amendments excessive bail clause may be interpreted to mean that the sole purpose of bail is to ensure the defendant returns for trial; bail may not be used as a form of punishment or to coerce or threaten a defendant
3) supreme court: Stack v. Boyle 1951 - the court held that bail is excessive when it exceeds an amount reasonable calculated to ensure that the defendant will return for trial, if a crime is bailable, the amount set should not be frivolous, unusual, or beyond a persons ability to pay
when and how are bail decisions are made?
1) bail is typically considered at a court hearing conducted shortly after a person has been taken into custody
2) at the hearing such issues are crime type, flight risk, and dangerousness are considered before a bail amount is set
3) prior record is an important factor: fewer than half of defendants with an active criminal justice record status, at the time of arrest were released, compared to 67^ of these with no active status
2) at the hearing such issues are crime type, flight risk, and dangerousness are considered before a bail amount is set
3) prior record is an important factor: fewer than half of defendants with an active criminal justice record status, at the time of arrest were released, compared to 67^ of these with no active status
alternative bail release mechanisms
1)police field citation release
2) police station house citation release
3) police pretrial jail citation release
4) pretrial/ court direct release by pretrial bail program
5) police/ court bail schedule
2) police station house citation release
3) police pretrial jail citation release
4) pretrial/ court direct release by pretrial bail program
5) police/ court bail schedule
police field citation release (ALT release mechanism)
an arresting officer releases the arrestee on a written promise to appear in court made at or near the actual time and location of the arrest. the procedure is commonly used for misdemeanor charges and is similar to issuing a traffic ticket
police station house citation release (ALT release mechanism)
the determinaton of an arrestees elgibility and suitability for release and the actual release of the arrestee are deferred until after he has been removed from the scene of an arrest and brough to the station house or police HQ
police pretrial jail citation release (ALT release mechanism)
the determination of an arrestee's eligibility and suitability for citation release and the actual release of the arrestee are deferred until after he or she has been delivered by the arresting department to a jail or other pretrial detention facility for screening, booking, and admission
pretrial. court direct release by pretrial bail program (ALT release mechanism)
to streamline release processes and reduce the length of stat in detention, pretrial program courts my authorize pretrial programs to release defendants without direct judicial involvement. when court rules delegate such authority has been granted in some jurisdictions
police/ court bail schedule (ALT release mechanism)
an arrestee can post bail at the station house or jail according to amount specified in a bail schedule is a list of all bailable charges and a corresponding dollar amount for each, schedules may vary widely from jurisdiction to jurisdiction
full cash bail
the defendant pays the full bail amount out of pocket. In some jurisdictions, property can be pledged instead of cash
deposit bail
the defendant deposits a percentage of the bail amount typically 10%, with the court, when the defendant appears in court the deposit is returned, sometime minus an administrative fee. if the defendant fails to appear, he or she is liable for the full amount of bail
surety bail
the defendant pays a percentage of the bond, usually 105, to a binding agent, who post the fill bail, the fee paid to the bonding agent is not returned to the defendants is he or she fails to appear in court, the bonding agent is liable for the full amount of the bond should the defendant fail to appear, bail bonding agents hire bounty hunters to find the defendants who fail to appear for their court dates
conditional bail
the defendant is released after promising to abide by some specific conditions in lieu of cash. For example, she promises to attend a treatment program prior to trial
unsecured bond
the defendant is released with no immediate requirement of payment. however, if the defendant fails to appears, he is liable for the full amount
release on recognizance
eligible defendants are released without bail upon their promise to return for trial
pretrial detainees
people who either are denied bail or cannot afford to post bail before trial and are kept in secure confinement
- jails are often considered the weakest link in the criminal justice process. they are frequently dangerous, harmful, decrepit, and filled with the poor and friendless
- jails are often considered the weakest link in the criminal justice process. they are frequently dangerous, harmful, decrepit, and filled with the poor and friendless
avertable recidivist
a person whose crime would have been prevented if he or she had been given discretionary release and instead had been kept behind bars
preventive detention
the statutory authorization to deny bail to a particular individual who is considered dangerous or a flight risk
pretrial programs
determining which defendants can safely be released on bail pending trial
- gathering and verifying information about arrestees, including criminal history, current status in CJ system, address, employment, and history of drug and alcohol use, which judicial officers can take into account in making release. detention decisions
- assessing each arrestees likelihood of failure to appear and chances of being rearrested
- providing supervision for defendants conditionally release and notifying the court of any failure to comply with release conditions
- special needs
- gathering and verifying information about arrestees, including criminal history, current status in CJ system, address, employment, and history of drug and alcohol use, which judicial officers can take into account in making release. detention decisions
- assessing each arrestees likelihood of failure to appear and chances of being rearrested
- providing supervision for defendants conditionally release and notifying the court of any failure to comply with release conditions
- special needs
presentment
the report of a grand jury investigation, which usually includes a recommendation of indictment
indictment
a written accusation returned by the grand jury, charging an individual with a specified crime after determination of probable cause
true bill
the actions by a grand jury when it votes to indict an accused suspect
no bill
the action by a grand jury when it votes not to indict an accused suspect
exculpatory evidence
all information that is material and favorable to the accused defendant because it casts doubt on the defendants guilt or on the evidence the government intends to use at trial
preliminary hearing
hearing before a magistrate to determine whether the government has sufficient evidence to show probable cause that the defendant committed the crime
information
a formal charging document, similar to an indictment, based on probable cause as determine at a preliminary hearing
waiving the preliminary hearing
1) a unique aspect of the preliminary hearing is the defendants right to waive the proceeding
2) the defendant may want to waive the prelim hearing for one of 3 reasons:
- he has already decided to plead guilty
- he wants to speed up the criminal justice process
- he hopes to avoid the negative publicity that might result from the hearing
2) the defendant may want to waive the prelim hearing for one of 3 reasons:
- he has already decided to plead guilty
- he wants to speed up the criminal justice process
- he hopes to avoid the negative publicity that might result from the hearing
guilty plea (and consequences)
it functions not only as an admission of guilt but also as a surrender of the entire array of constitutional right designed to protect a criminal defendant against unjustified conviction, including the right to remain silent the right to confront witnesses against him, the night to a trial by jury, and the right to be proved guilty by proof beyond a reasonable doubt
not guilty plea
1) at the arraignment or before the trial,a not guilty plea is entered in 2 ways:
- it is orally stated by the defendant or defense counsel
- it is entered by the defendant by the court when the defendant by the court stands mute before the bench
- it is orally stated by the defendant or defense counsel
- it is entered by the defendant by the court when the defendant by the court stands mute before the bench
nolo contendere
no contest - the defendant submits to sentencing without any formal admission of guilt that could be used against him in a subsequent civil suit
the nature of the plea bargain
normally, a bargain can be made between the prosecutor and the defense attorney in 4 ways
- the initial charges may be reduced to those of a lesser offense, thus automatically reducing the sentence imposed
- in cases in which many counts are charged, the prosecutor may reduce the number of counts
- the prosecutor may promise the recommend an lenient sentence, such as probation
- when they charge imposed has a negative label attached, the prosecutor may alter the charge to a more socially acceptable one in exchange for a plea of guilty
- the initial charges may be reduced to those of a lesser offense, thus automatically reducing the sentence imposed
- in cases in which many counts are charged, the prosecutor may reduce the number of counts
- the prosecutor may promise the recommend an lenient sentence, such as probation
- when they charge imposed has a negative label attached, the prosecutor may alter the charge to a more socially acceptable one in exchange for a plea of guilty
pros of plea bargaining
1) the overall costs of the criminal prosecution are reduced
2) the administrative efficiency of the courts is greatly improved
3) the prosecution can devote more time to more serious cases
4) the defendant avoids possible detention and an extend trial and may receive a reduced sentence
5) resources can be devoted more efficiently to cases that need greater attention
2) the administrative efficiency of the courts is greatly improved
3) the prosecution can devote more time to more serious cases
4) the defendant avoids possible detention and an extend trial and may receive a reduced sentence
5) resources can be devoted more efficiently to cases that need greater attention
cons of plea bargaining
1) it encourages defendants to waive their constitutional right to trial
2) plea bargains allow dangerous offenders to receive lenient sentences
3) plea bargaining also raises the danger that an innocent person will be convicted of a crime if he or she is convicted and a harsher sentence following a formal trial
4) prosecutors are given a free hand to induce or compel defendants to plea bargain, thus circumventing the law
5) a guilty plea culture has developed among defense lawyers
2) plea bargains allow dangerous offenders to receive lenient sentences
3) plea bargaining also raises the danger that an innocent person will be convicted of a crime if he or she is convicted and a harsher sentence following a formal trial
4) prosecutors are given a free hand to induce or compel defendants to plea bargain, thus circumventing the law
5) a guilty plea culture has developed among defense lawyers
the problems of false convictions
1) it is certainly not desirable to have an otherwise innocent offender plead guilty to a crime that he or she did not commit
2) according to the innocence project, there are several reasons:
- duress
- coercion
- intoxication
- diminished capacity
- mental impairment
- ignorance of the law
- fear of violence
- the actual infliction of harm
- the threat of a hard sentence
- misunderstanding the situation
2) according to the innocence project, there are several reasons:
- duress
- coercion
- intoxication
- diminished capacity
- mental impairment
- ignorance of the law
- fear of violence
- the actual infliction of harm
- the threat of a hard sentence
- misunderstanding the situation
legal issues in plea bargaining
1) the Supreme Court has reviewed the propriety of plea bargaining in several decisions and while impossible limits on the practice, has upheld its continued use. The court has ruled in several key cases
- defendants are entitled to the effective assistance of counsel to protect them from pressure and influence
- pleas must be made voluntarily and without pressure. however a persecutor can tell defendants that they may be facing the death penalty if they go to trial
- any promise made b the prosecutor during the plea negotiations must be kept after the defendants admits to guilt in open court, a prosecutor who promises leniency in private negotiations must stick to that position in court
- defendants must also keep their side of the bargain to receive the promised offer of leniency. if they agree to testify against a co-defendant, they must give evidence at trial or forfeit the bargain
- a defendants due process rights are not violates when a prosecutor threatens to re-indict the accuse on a more serious charge for example as a habitual offender, if the defendant does not plead guilty to a lesser offense
- accepting a guilty plea from a defendant who maintains his innocence is invalid
- statements made during a plea bargain may be used under some circumstances at trial if the negotiations break down. statement made during a plea negotiation can be used if the defendant admits to crime during the bargain process but later testifies in open court that he did not do the act and is innocent of the charges
- defendants are entitled to the effective assistance of counsel to protect them from pressure and influence
- pleas must be made voluntarily and without pressure. however a persecutor can tell defendants that they may be facing the death penalty if they go to trial
- any promise made b the prosecutor during the plea negotiations must be kept after the defendants admits to guilt in open court, a prosecutor who promises leniency in private negotiations must stick to that position in court
- defendants must also keep their side of the bargain to receive the promised offer of leniency. if they agree to testify against a co-defendant, they must give evidence at trial or forfeit the bargain
- a defendants due process rights are not violates when a prosecutor threatens to re-indict the accuse on a more serious charge for example as a habitual offender, if the defendant does not plead guilty to a lesser offense
- accepting a guilty plea from a defendant who maintains his innocence is invalid
- statements made during a plea bargain may be used under some circumstances at trial if the negotiations break down. statement made during a plea negotiation can be used if the defendant admits to crime during the bargain process but later testifies in open court that he did not do the act and is innocent of the charges
The role of the prosecutor in plea bargaining
1) discretionary tool
2) few limitations
3) considerations:
- seriousness of the crime
- attitude of the victim
- police report
- applicable sentencing provisions
2) few limitations
3) considerations:
- seriousness of the crime
- attitude of the victim
- police report
- applicable sentencing provisions
the role of the defense attorney is plea bargaining
1) advisory
2) explanatory
3) informative
2) explanatory
3) informative
the role of the judge in plea bargaining
1) approval
2) the perception is that judicial participation in plea negotiations
- creates the impression in the mind of defendants that they cannot receive a fair trial
- lessens the ability of the judge to make an objective determination of the voluntary nature in the plea
- is inconsistent with they theory behind the use of pre-sentence investigation reports
- may induce innocent defendants to plead guilty because they are afraid to reject the disposition desired by the judge
2) the perception is that judicial participation in plea negotiations
- creates the impression in the mind of defendants that they cannot receive a fair trial
- lessens the ability of the judge to make an objective determination of the voluntary nature in the plea
- is inconsistent with they theory behind the use of pre-sentence investigation reports
- may induce innocent defendants to plead guilty because they are afraid to reject the disposition desired by the judge
the victim and plea bargaining
statures do not require the prosecutor defer to the victims wishes, and there are no legal consequences for ignoring the victim in a plea bargaining decision
plea bargaining reforms, safeguard to prevent due process violations
1) in recent years, efforts have been made to convert plea bargaining into a more viable,, understandable, and fair dispositional process
2) safeguards:
- the judge questions the defendant about the facts of the guilty plea before accepting the plea
- the defense counsel is present and can advise the defendant of her rights
- the prosecutor and the defense attorney openly discuss the plea
- full and frank information about the defendant and the offense is made available at this stage of the process. In addition, judicial supervision ensures that plea bargaining is conducted in a fair manner
2) safeguards:
- the judge questions the defendant about the facts of the guilty plea before accepting the plea
- the defense counsel is present and can advise the defendant of her rights
- the prosecutor and the defense attorney openly discuss the plea
- full and frank information about the defendant and the offense is made available at this stage of the process. In addition, judicial supervision ensures that plea bargaining is conducted in a fair manner
pre-trial diversion
1) another important feature of the early court process is placing offenders into noncriminal diversion programs before their formal trial or conviction
2) these programs pursue the same goals: to constructively bypass criminal prosecution by providing a reasonable alternative in the form of treatment, counseling, or employment programs
2) these programs pursue the same goals: to constructively bypass criminal prosecution by providing a reasonable alternative in the form of treatment, counseling, or employment programs
bench trial
the trial of a criminal matter by a judge only, the accused waves any constitutional right to a jury trial
verdict
the finding of a jury or judge on questions of fact at a trial
adjudication
the determination of guilt or innocence, a judgement concerning criminal charges
legal rights during trial
1) the right to an impartial judge
2) the right to confront witness
3) the right to compulsory process
4) the right to an impartial jury
5) the right to counsel at trial
6) the right to a speedy trial
7) the right to a public trial
8) the right to be convicted by proof beyond a reasonable doubt
2) the right to confront witness
3) the right to compulsory process
4) the right to an impartial jury
5) the right to counsel at trial
6) the right to a speedy trial
7) the right to a public trial
8) the right to be convicted by proof beyond a reasonable doubt
the right to an impartial judge (legal rights during trial)
the supreme court held that it is a violation of due process when a judge has a direct, personal, substantial pecuniary interest in reaching a conclusion against a defendant in his case
the right to confront a witness (legal rights during trial)
1) the 6th amendment states that in all criminal prosecution the accused shall enjoy the right to be confronted the witness against him
2) the right to confrontation is also violated if out of court testimony is used to convict the accused
3) confrontation clause
4) hearsay evidence
2) the right to confrontation is also violated if out of court testimony is used to convict the accused
3) confrontation clause
4) hearsay evidence
confrontation clause
the constitutional right of criminal defendant to see and cross examine all the witness against him
hearsay evidence
testimony that is not firsthand but rather related information told be a second party
the right to compulsory process (legal rights during trial)
compelling the production of a witness or evidence via a subpoena
the right to an impartial jury (legal rights during trial)
1) the criminal defendant has the right to choose whether the trial will be before a judge or jury
2) when the possible sentence is 6 months or less, the accused is not entitled by a jury trial unless is authorized by state statute
2) when the possible sentence is 6 months or less, the accused is not entitled by a jury trial unless is authorized by state statute
the right to counsel at trial (legal rights during trial)
today state courts must provide counsel at trial to indigent defendants who have even the possibility of incarceration, and who are charged with any type of crime not just a felony
the right to a speedy trial (legal rights during trial)
1) the supreme court has called the right to a speedy trial as fundamental as any of the right secured by the 6th amendment. its primary purposes are to:
- improve the credibility of the trial by having witnesses available for testimony as early as possible
- help criminal defendants avoid lengthy pretrial detention
- avoid extensive pretrial publicity and questionable conduct of public officials that may influence the defendants right to a fair trial
- avoid any delay that could affect the defendants ability to defend himself against charges
- improve the credibility of the trial by having witnesses available for testimony as early as possible
- help criminal defendants avoid lengthy pretrial detention
- avoid extensive pretrial publicity and questionable conduct of public officials that may influence the defendants right to a fair trial
- avoid any delay that could affect the defendants ability to defend himself against charges
the right to a public trial (legal rights during trial)
1) this simply means that all trial must be open to the public
2) first amendment - the amendment of the US constitution that guarantees freedom of speech, religion, press, and assembly, and the right of the people to petition the government for redress of grievances
2) first amendment - the amendment of the US constitution that guarantees freedom of speech, religion, press, and assembly, and the right of the people to petition the government for redress of grievances
the right to be convicted by proof beyond a reasonable doubt (legal rights during trial)
the standard of proof needed to convict in a criminal case. the evidence offered in court does not have to amount to absolute certainty, but is should leave no reasonable doubt that the defendant committed the alleged crime
evidentiary standard of proof: degrees of certainty
1) absolute certainty
2) beyond a reasonable doubt
3) clear and convincing
4) preponderance of the evidence - greater weight of evidence in terms of credibility; more than an opposite point of view
5) probable cause
6) sufficient evidence
7) reasonable suspicion
8) less than probable cause
2) beyond a reasonable doubt
3) clear and convincing
4) preponderance of the evidence - greater weight of evidence in terms of credibility; more than an opposite point of view
5) probable cause
6) sufficient evidence
7) reasonable suspicion
8) less than probable cause
the trial process
1) jury selection
2) opening statements
3) the prosecutions case
4) the defenses case
5) closing argument
6) instructions to the jury
7) deliberation and verdict
8) appeals
2) opening statements
3) the prosecutions case
4) the defenses case
5) closing argument
6) instructions to the jury
7) deliberation and verdict
8) appeals
venire
the group called for jury duty from which jury panels are selected
voir dire
the process in which a potential jury panel s questioned by the prosecution and the defense in order to select jurors who are unbiased and objective
challenge for cause
dismissal of a prospective juror by either prosecution or the defense because he or she is biased, because he or she has prior knowledge about the case, or for the reasons that demonstrate the individuals inability to render a fair and impartial judgement
peremptory challenge
dismissal of a prospective juror by either the prosecution or the defense for unexplained, discretionary reasons
directed verdict
a judge's order directing a jury to acquit a defendant because the state has not proven the elements of the crime or otherwise has not established guilt according to the law
jury nullification
a jury's refusal to render a verdict according to the law and fact regardless of the evidence presented
appeal
a request for an appellate court to examine a lower courts decision in order to determine whether the proper procedures were followed
write of habeas corpus
a judicial order requesting that a person who detains another person produce the body of the prisoner and give reasons for his capture and detention
habeas corpus is a legal device used to request that a judicial body review the reasons for a persons confinement and the conditions of confinement.
habeas corpus is know as the great writ
habeas corpus is a legal device used to request that a judicial body review the reasons for a persons confinement and the conditions of confinement.
habeas corpus is know as the great writ