The Paralegal Professional Chapter Eight Criminal Procedure and Administrative Law

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 2 Introduction to Criminal Procedure For members of society to coexist peacefully and commerce to flourish, people and their property must be protected from injury by other members of society. Federal, state, and local governments’ criminal laws are intended to accomplish this by providing an incentive for persons to act reasonably in society and imposing penalties on persons who violate them.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 3 Introduction to Criminal Procedure (cont.) Innocent until proven guilty Burden of proof is on the government Accused must be found guilty beyond a reasonable doubt

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 4 Parties and Attorneys to a Criminal Action Parties: Plaintiff= government Defendant = accused Attorney: Prosecuting Attorney: represents the govt. District Attorney: prosecutes on behalf of the state U.S. Attorney: prosecutes on behalf of the federal govt. Defense Attorney: represents the accused Public Defender: a govt. attorney who represents the accused Private Attorney: a nongovernment attorney who accused hires to represent him/her.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 5 Criminal Procedure Pretrial Criminal Procedure: Arrest: pursuant to a warrant based on a showing of probable cause or by warrantless arrest, if permitted Bail: set after the arrest Indictment (Grand jury) or Information (Judge): formally charging the accused with a crime. Arraignment: Accused informed of the charges and enters a plea in court Plea Bargaining: the government and the accused may negotiate a settlement

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 6 Criminal Trial The criminal trial and the civil action trial have many similarities: Judge or Jury can act as trier of fact Judge handles procedural rules Order and presentation of evidence

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 7 Criminal Trial (cont.) Outcome: Conviction: Unanimous vote of the jury Innocent: Unanimous vote of the jury Hung Jury: jury cannot come to a unanimous decision. The government may prosecute the case again. Appeal: Defendant may appeal conviction; government (plaintiff) may not appeal a verdict of innocent.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 8 Criminal Trial (cont.) Limited amount permitted Government must provide exculpatory evidence to the defense attorney Federal Rules of Criminal Procedure provide that the government must disclose and make available any written or oral statements by the defendant

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 9 Constitutional Safeguards Constitutional safeguards: The U.S. constitution includes provisions that protect persons from unreasonable government intrusion and provide safeguards for those accused of crimes: 4 th Amendment 5 th Amendment 6 th Amendment 8 th Amendment

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Protection Against Unreasonable Searches and Seizures Reasonable Search and Seizure based on probable cause is lawful: Search warrant: stipulates the place and scope of the search. Warrantless search: permitted only: Incident to an arrest Where evidence is in plain view Where it is likely that evidence will be destroyed

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Protection Against Unreasonable Searches and Seizures Exclusionary Rule: evidence obtained from an unreasonable search and seizure is tainted evidence that may not be introduced at a government proceeding against the person searched Business premises: protected by the 4 th Exception: certain regulated industries may be subject to warrantless search by statute

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Privilege Against Self Incrimination “No person shall be compelled in any criminal case to be a witness against himself.” Nontestimonial evidence (fingerprints) is not protected Only applies to natural persons Miranda rights: a right to be informed of 5 th Amendment rights before the suspect can be interrogated by police or government officials.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Privilege Against Self Incrimination Immunity from prosecution: grant by the government to use evidence against the person who gave it Attorney-client privilege: An accused’s lawyer cannot by called as a witness against the accused

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Privilege Against Self Incrimination Other privileges: Psychiatrist/psychologist –patient Priest/minister/rabbi-penitent Spouse-spouse Parent-child Accountant-client privilege: state action only

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Privilege Against Self Incrimination Double Jeopardy: Protects persons from being tried twice by the same jurisdiction for the same crime. However, if the act violates the laws of two or more jurisdictions, each jurisdiction may try the accused.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Right to a Public Trial Guarantees criminal defendants: Tried by an impartial jury Confront the witness Assistance of a lawyer Speedy trial

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved th Amendment Protection Against Cruel and Unusual Punishment Protects criminal defendants from cruel and unusual punishment Capital punishment is permitted

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 18 Administrative Law and Agencies Administrative agencies – created by federal and state legislative executive branches who interpret and apply designated statutes General regulation – applies to many different businesses or industries (labor rules) Specific regulation – applies to a specific industry (aviation, railroads)

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 19 Administrative Law and Agencies Includes rules & regulations promulgated by the agency, under power delegated by the legislative or executive branches Enforce statutes Interpret statutes Also includes agency procedural laws & administrative procedural law

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 20 Administrative Procedure Administrative Procedure Act (APA) Establishes procedures (notice, hearing) for federal agencies to follow in conducting their affairs. States have enacted their own procedural acts to govern state agencies. Administrative Law Judge (ALJ) presides over the administrative proceeding, decides questions of law and fact and issues a decision

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 21 Powers of Administrative Agencies When an administrative agency is created, it is delegated certain powers. The agency has only the legislative, judicial, and executive powers that are delegated to it. This is called the delegation doctrine.

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 22 Powers of Administrative Agencies cont. Substantive Rule Making Licensing Power Judicial Power Judicial Authority Executive Power

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 23 Public Disclosure of Agency Actions Freedom of Information Act (“FOIA”): Public access permitted to most documents in the possession of federal agencies: Agency procedures Rules & regulations Interpretations Other information in the Federal Register

The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 24 Public Disclosure of Agency Actions Government in the Sunshine Act: Opens certain federal administrative agency meetings to the public Equal Access to Justice Act : Protects persons from harassment by federal administrative agencies and provides penalties for its violation Privacy Act Restricts information a federal administrative agency can maintain about an individual Gives individuals the right to access agency records concerning themselves