The Administration of Justice Chapter 8

Key Actors in Court: Prosecutor Possible Names: district attorney, state’s attorney, solicitor In large cities the day-to-day work is done by assistant district attorneys. Jobs: Conduct the final screening of each person arrested Decide if there is enough evidence to support a conviction Decided whether to charge and/or prosecute the case – They find a crime has been committed – A perpetrator can be identified – There is sufficient evidence to support a guilty verdict. Determine what the charges will be if they prosecute If they select NOT to prosecute they must ender a notation of nolle prosequi and formally dismiss the charges. Prosecutors should not be influenced by the personal or political advantages or disadvantages that might be involved in prosecuting or not prosecuting a case.

Reasons NOT to prosecute … 1.Belief an offense did not cause sufficient harm 2.Relationship between the statutory punishment and the offender or the offense 3.Improper motive on the part of the complainant 4.Particular law has been violated with impunity for a long time with few complaints 5.Victim may refuse to testify 6.Humanitarian concerns for the welfare of the victim or offender 7.Accused person cooperates in the apprehension or conviction of other criminal offenders 8.Accused is wanted for prosecution of a more serious crime in another jurisdiction 9.Offender is on parole when he or she commits the new crime

Key Actors in Court – Defense Attorney 6 th Amendment – guarantees the right to the “effective assistance” of counsel to people charged with crimes Right to Counsel – custodial interrogations, preliminary hearings, police lineups, and trial, first appeal and probation/parole hearings Defendant may waive the right to counsel if waiver is made knowingly, intelligently, and voluntarily. Is this legal?Scott Panetti

Defense Attorney Continued Role of defense lawyer is to provide the best possible legal counsel and advocacy within the legal and ethical limits of the profession. If you cannot afford an attorney you will receive and court appointed attorney, a public defender, or a “contract” lawyer. *Most criminal lawyers handle a large volume of cases and struggle to earn a decent living. Most gain reputations for their ability to “fix” cases. They usually spend more time at the jail and courthouse than their offices.

Types of Defense Attorneys Court Appointed Lawyer: lawyers volunteer to represent indigent offenders and are appointed by judges on a rotating basis from a list (or they appoint from members of the county bar association) Public Defenders: lawyers who are paid a fixed salary by a jurisdiction to defend indigents charged with crimes Contract Lawyer: private attorneys bid for the right to represent a jurisdictions indigent defendants

Key Actors in Court – The Judge Non-trial Duties: determining probable cause, signing warrants, informing suspects of their rights, setting and revoking bail, arraigning defendants, and accepting guilty pleas Primary Responsibility: ensure that suspects and defendants are treated fairly and in accordance with due process of the law In the United States, judges are overwhelmingly white and male and from an upper-middle class background. Selection methods – Election and Merit Selection; Gubernatorial appointment and legislative appointment Judges are NOT required to be lawyers or to possess any special educational or professional trainings – many come without any practical experience in criminal law

From Arrest through Initial Appearance Soon after most suspect are arrested, the are taken to the police station to be “booked.” Booking is the process in which suspects’ names, the charges for which they are arrested, and perhaps their fingerprints or photographs are entered into the police blotter. Following booking, a prosecutor is asked to review the facts of the case and, considering the available evidence, to decide whether a suspect should be charged with a crime(s). A charging document is prepared. There are three types: 1.Complaint – outlines the offense and is supported by oath from officer or victim 2.Information – outline formal charges and evidence to support those charges 3.Grand Jury Indictment – written charge by a jury that the person committed the crime Suspect are now defendants … defendants are brought before a lower-court judge for an initial appearance. Given formal notice of their charges, their rights, and pre-trial release conditions are set. (no more 72 hours)

Pretrial Release 1.Secured Bail: a monetary guarantee deposited with the court that ensures the suspect will appear at a later stage. You get it all back if you appear. Constitution only requires that the amount not be excessive. Bail depends on: – Ties to the community – Seriousness of the crime – Prior criminal record – Jail conditions – Ability to pay 2.Bail Bond: professional will post it for a non-refundable fee 3.Unsecured Bond: bail is set but no money is paid to the court, liable for full amount if you do not appear 4.Preventive Detention: holding suspects in jail because of the threat they pose to society 5.Release on Own Recognizance: release with a written promise to appear in court 6.Conditional Release: requires that a suspect maintain contact with a pretrial release program ***If you do not appear … a bench warrant is issued for your arrest***

Plea Bargains  90% of all convictions in felony cases are the result of guilty pleas The types of pleas: 1.Defendant may be allowed to plead guilty to a lesser offense. 2.Defendant who pleads guilty may receive a lighter sentence than would typically be given. 3.Defendant may plead guilty to one charge in return for the prosecutor’s promise to drop other charges that could be brought. *Prosecutor can only recommend the plea, a judge has to approve it. Plea’s depend on three factors: 1.Seriousness of the offense 2.Defendant’s criminal record 3.Strength of prosecutor’s case Neither a constitutional basis or a statutory basis for plea bargaining. Once a defendant pleads guilty and is sentenced, the are stuck with the plea.

The Jury Purposes of trial by jury: – To protect citizens against arbitrary law enforcement – To prevent government oppression – To protect citizens from overzealous or corrupt prosecutors and from biased judges Appellate courts have ruled that master jury list must reflect an impartial and representative cross section of the population. From the master list, a number of people are randomly chosen 1. venire – they are summoned for service by the sheriff – 30 will be selected by a clerk for: 2. voir dire - questioning by lawyers for both sides 3. peremptory challenges are made reducing the jury to 12 plus 2 alternates. Potential jurors must be: (1)US citizen; (2) resident of jurisdiction; (3) minimum age; (4) speak English. Compensation for jury service is about $15.00 a day. [Federal gov’t pays $40.00]

Jury Summons Example

Pretrial Motions Pretrial Motions: * Motion for discovery of evidence – to examine evidence in the possession of the prosecutor * Motion for continuance – seeks more time to prepare the case * Motion for change of venue – request to change the location of the trial to avoid hostility * Motion to suppress evidence – request that certain evidence not be allowed to be presented

1. Opening Statements Prosecution goes first Then Defense 2. Presentation of Prosecution Case Evidence is presented through witness testimony and documents PROSECUTION’S direct examination DEFENSE’S cross-examination PROSECTION may re-direct 3. Presentation of Defense Case The Defendant has a right NOT to put on a case and the right NOT to testify. They can NOT mention the fact that they are not testifying. DEFENSE’S direct examination PROSECUTION’S cross-examination DEFENSE may re-direct 4. Closing Arguments NOT like opening statements ARGUES the facts that came out during the case Prosecution goes first Defense goes second Prosecution has an opportunity for “rebuttal” 5. Jury Instruction and Deliberations Prosecution and Defense propose instructions for the jury – Reminder of laws, and what to consider Judge reads the instructions to the jury 6. Jury Verdict Guilty = JURY MUST BE UNANIMOUS Not Guilty = JURY MUST BE UNANIMOUS “Hung Jury” = non-unanimous, usually can retry case