PS305 final exam
one shotter
deals with legal system infrequently, interest in winning case is very high
PB common complaints
defendant's interests sometimes ignored for sake of expediency, defendant who doesn't accept deal is being punished for exercising his/her constitutional rights - defendants who do go to trial usually receive more severe punishment, jury trial penalty, society not protected b/c sentences too lenient, lack of transparency, can pressure innocent to plead guilty if they fear the potentially more severe consequences of going to trial, victim of the crime often feels cheated or even left out of the process
trial stage 3
defense, does not need to provide evidence if believe prosecution failed to carry burden of proof, 5th amendment right against self-incrimination (but suspicion of def who does not take the stand, but if they take stand they are open to cross exam)
cash bail
deposited to court and returned at hearing
Methods for tort reform
eliminating or capping contingency fees, capping damages for pain and suffering, capping punitive damages, fee shifting, placing tighter restrictions on formation of classes for class actions, abolishing joint and several liability
disputing pyramid
grievances-claims-disputes-lawyers consulted-court filings
repeat players
has resources to pursue long term interests, low stakes of outcome in any particular case
powerful tool for police-"process is the punishment"
humiliation of the arrest and the stigma that may attach to it, time spent in jail, $ spent, time lost at work and the general disruption in one's life
initial appearance
individual receives a formal notice of the charges for which he is being held, advised of his or her rights, if appropriate will have bail set, may be determined if the suspect qualifies for a court appointed counsel
Development and resolution of disputes steps
injury-grievance (inaction or avoidance)-claiming (claim accepted or negotiated settlement)-dispute (mediation, arbitration, litigation, coercion)
privately secured/surety bail
involves bail bondsmen who give promissory note to pay if defendent does not show, bondsman charges 10-15%
unsecured bond
liable for full amt if do not show to court
tort cases
libel-a published false statement that is damaging to a person's reputation; a written defamation / slander-the action or crime of making a false spoken statement damaging to a person's reputation / negligence-failure to use reasonable care, resulting in damage or injury to another
cons of CALs
limits choices and options, Unnamed plaintiffs (those who chose not to opt-out), have the least amount of control over the case. For instance, the named plaintiffs can accept a settlement, which is binding on all class members, regardless of whether un-named members want the case to be determined by a verdict after a full trial. Finally, the complexity of class action cases makes them difficult and expensive to litigate, requiring greater time and resources of the attorneys and the court. Potential payment to many people.
Nardulli's Categories of PB - Consensus Model
little/no actual bargaining, less serious offenses
bail bondsman benefits
monetary interest in helping ensure clients show up in court, relieves state and taxpayer money
charging document
must be given information upon which to prepare a defense, so Charging Document includes the name of the person charged and a brief description of how and where the offense was committed and the statute allegedly violated. 3 types: Complaint-misdemeanor/city ordinance, An Information-virtually same but more formal and can initiate felony prosecutions, Indictment-after grand jury
US v Salerno
no absolute right to have bail set
trial stage 1
opening statements, summarize, create spin on evidence, 1st impressions very important, what they hope to prove, mistrial if are misleading
PB benefits
organizational expediency, greater individualization of justice, softening the harshness of the law where appropriate, benefits derived by all the interested parties to the process
% of deposit bail
present in ltd number of jurisdictions, no bondsman, state has burden of tracking, usually 10% deposited by def and 90%+ returned
RoR bond
promise to appear, no $, no flight risk/danger to society
trial stage 2
prosecution, need guilt beyond reasonable doubt, present evidence, testimony-direct and circumstantial, judge is umpire/rules on objections, cross examine
service
The defendant is served with a copy of the complaint and has a certain amount of time to file an answer with the court. If no answer is given-Implies an admittance of liability, the plaintiff can ask the court for a default judgment. If answer-either deny or cross complaint/counter claim
pros of class action lawsuits
provide a means through which plaintiffs may bring small legal claims that would be too costly to litigate individually. Additionally, class actions can equalize the difference in power between robust entities and individuals without significant resources. As a group, individuals amplify their ability to litigate, negotiate and settle disputes. Can combine many potential lawsuits into one.
insanity defense
rarely used and rarely successful, Studies indicate defendants acquitted by reason of insanity are likely to spend as much or more time confined in a psychiatric institution as they would have if convicted and sentenced to jail
trial stage 4
rebuttal, closing args, greater freedom bc all evidence is presented, verdict, sentencing
bail bondsman common complaints
seen as shady bc make money off hardships, past connections w organized crime, unethical ties to certain lawyers, unethical/illegal tactics used to capture bail jumpers
Tort tales
short cases (which may be true, but need not), emphasize poor judgment by the victim, the blamelessness of the defendant, greed as the motivating factor. ex) Mcdonalds coffee case
civil law
society plays no direct role in resolution, one party is wronged and requests compensation, no public prosecution
Litigation explosion
supposed propensity of Americans to resort to the courts in unusually large numbers / also refers to filings, not trials. Whether it be criminal or civil, 90-95 percent of these cases are settled before going to trial. / is this a reflection of society and culture?
contingency fees
the lawyer is paid only if the case is won. The fee is a proportion, typically one- third, of the monetary damages recovered by the plaintiff. Lawyers representing plaintiffs in personal injury cases typically work under a contingency fee arrangement.
prosecutors almost always win crim justice trials-
the one who decides to take the case to the grand jury in the first place, only probable cause needs to be shown, defense is not present, evidence inadmissible at trial is admitted, often only a simple majority vote is required, no public oversight.
no true bill
the prosecutor knows the case is not prosecutable but the public or a segment of the public is outraged about it, the prosecutor using the grand jury for political cover
why bail?
those defendants who make bail and are free pending trial are less likely to be convicted and if convicted less likely to receive active incarceration. / less normal life disruption
types of civil cases
tort, contracts, real prop, estates, domestic relations, small claims
no contest
treated as a guilty plea for sentencing purposes, sometimes used as part of a plea bargain where there is a likelihood of a civil case arising out of the same facts, many judges do not look kindly on no contest pleas because the defendant is not admitting any wrong-doing, in some cases it may be used by a judge to justify a tougher sentence
preventive detention-informal
used historically, the judge simply sets the bail at a level he or she is almost certain the defendant can not meet
Judge role in deal
usually defers to prosecutor-turns down few agreements, but can veto any deal (as defendant can)
criminal law
victim is not party to the action, society plays a role in process, public prosecutor brings the case in the name of the state
benefits of plea bargaining
when properly administered it can benefit all the interested parties - defendant, defense counsel, prosecutor, judge, police, and the public / expedites the process and clears calendars / the guilty are convicted and punished / saves the public a substantial amount of money
Concession model
active bargaining, more serious/longer criminal record, everything up for negotiation
Blackledge v. Allison, 1976
argued that plea bargaining benefits all concerned in a criminal case
4th amendment
arrests and warrants not often required in felony cases & misdemeanors in presence of police
sentencing
at end of trial or separate date in more serious cases, state&fed law set guidelines, movement to limiting judge discretion but still retain fair amount, options: probation, comm svc, fines, restitution, etc
Tort reform
attempts to introduce changes to the tort system to either reduce the number of cases brought, or reduce the possible damages that can be awarded.
affirmative defense
burden of proof switches to defendant, ex) insanity/necessity/duress/self defense
Right to bail
8th amendment - excessive bail shall not be required / determined what excessive means on case by case basis
US v. Booker 2005
1.) Does an enhanced sentence under U.S. Sentencing Guidelines based on the judge's determination of a fact violate the Sixth Amendment? Yes. 2.) If so, are the Sentencing Guidelines altogether unconstitutional? No. The Court held that the Sentencing Guidelines, where they allow judges to enhance sentences using facts not reviewed by juries, violated the Sixth Amendment right to trial by jury. The sentences of Booker and Fanfan, based partly on facts determined only by judges, were therefore unconstitutional. In a separate 5-4 opinion delivered by Justice Stephen Breyer, the Court said the guidelines would now be advisory and invalidated the provisions that made them mandatory.
Of 20% / 100 arrests
45 dismissed, 54 of 55 remaining prosecuted and result in convictions. 98% win for prosecutors. Of those 54 convictions approximately 90% are result of guilty pleas, leaving perhaps 5 that go to trial. This suggests prosecutors are very effective in weeding out weak cases.
Alford v. NC (1971)
Alford plea: plea guilty but maintain innocence / Alford was scared of possible death penalty on conviction
Santobello v. NY (1971)
Binding agreement a plea has / Was a prosecutor change, should uphold promise of original prosecutor
Arbitration
Binding or non-binding. / More formal process than mediation, but exactly how formal usually is decided upon by the parties. / Has an adversarial tone to it where the arbitrator will listen to arguments and witnesses presented by both sides and then hand down a decision.
Mediation
Can be difficult to distinguish from conciliation. It is also non-binding on the parties, but they do meet together with the mediator whose primary role is to facilitate an environment for negotiations between the parties.
State Farm Mutual Auto Insurance Co. v. Campbell (2002)
Curtis Campbell caused an accident in which one person was killed and another permanently disabled, his insurer, State Farm Mutual Automobile Insurance Company, contested liability and took the case to trial. State Farm assured the Campbells that they would represent their interests. After losing in court, the Campbells sued State Farm for bad faith, fraud, and intentional infliction of emotional distress. / Is an award of $145 million in punitive damages, when full compensatory damages are $1 million, excessive and in violation of the Due Process Clause of the Fourteenth Amendment? Yes. punitive damages can normally only be as much as nine times greater than compensatory damages.
Boykin v. Alabama (1969)
Defendant Boykin was African-American charged with common-law robbery, which carried a death sentence in Alabama. He was appointed counsel and pleaded guilty. Under Alabama law, the jury still provided a sentence of death. / Issue. Whether "the record must show, or there must be an allegation and evidence must show, that an accused" made a voluntary guilty plea. / "[T]he record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly" pleaded guilty.
arraigment
Defendant may be notified of his rights again, and is finally asked to enter a plea - guilty, not guilty, no contest
function of bail
Discourage defendants from fleeing before trial, as a public safety function, not a form of punishment/Innocent before proven guilty
Process similar to trial procedures
Exs) neighborhood justice centers, binding arbitration in professional baseball labor disputes, drug courts attached to the formal courts, rent-a-judge businesses where parties to a dispute can go and rent a judge (often a retired judge) to hear and decide their dispute
BMW v Gore (96)
Gore discovered that his new vehicle had been repainted & sued BMW, alleging that it committed fraud by failing to inform him that his car had been repainted. The Alabama Circuit Court entered judgment, following a jury verdict, awarding Gore $4,000 in compensatory damages and $4 million in punitive damages. On appeal from the trial judge's denial of BMW's post-trial petition to set aside the punitive damages as 'grossly excessive,' the Alabama Supreme Court ruled that the punitive damages were not so excessive as to violate BMW's Fourteenth Amendment right to due process. Due to a jury calculation error, however, the Alabama Supreme Court reduced Gore's punitive damage award to $2 million. BMW appealed to the Supreme Court. / the Court held that while a state may impose punitive damages to further its interest in deterring unlawful conduct, the Fourteenth Amendment's due process clause prohibits states from imposing grossly excessive punishments on tort-feasors
Execution stage-differences from criminal
If losing party is ordered by the court to do something and fails to do so & involved monetary damages, then there are avenues for the winning party to pursue, such as: attachment of property of the defendant, taking a lien on the property of the defendant, garnisheeing his or her wages, holding the non-complying party in contempt by the court.
4 forms of punishment
Imprisonment, Probation, Fines, Death Penalty on Rare Occassions / also affected by prior record & severity of crime
hung jury does not preclude a retrial
It is up to the prosecutor whether the case is worth retrying, money and political considerations often affect this decision of the prosecutor
Philip Morris USA v. Williams (2006)
Jesse Williams died of lung cancer at age 67 after a life spent smoking three packs of Marlboro cigarettes per day. His widow sued Phillip Morris, the maker of Marlboro cigarettes, alleging that the company had engaged in a deliberate, wide-spread campaign of misinformation on the dangers of smoking. / 1) Can a court's determination that a defendant's conduct was highly reprehensible and analogous to crime override the constitutional requirement that punitive damages must be reasonably related to the harm to the plaintiff? 2) Does due process permit a jury to punish a defendant for the effects of its conduct on non-parties? / 1) unconsidered. 2) No. The Court ruled 5-4 that "the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties."
PB potential reforms
Making process more transparent for the public, Ensuring that the defendant fully understands what is involved, Structured Sentencing
criminal justice funnel
Most crimes never make it to the arrest stage, Only 50% of felonies committed are reported, Only 20% of the reported felonies result in an arrest
motions and pre-trial conference
Motions on the civil side include: a motion for a more definite statement, a motion to dismiss, or a motion for a summary judgment. Many jurisdictions will also require some form of pre-trial conference to see if the case can be settled.
civil trial differences
No constitutional right to counsel or jury trial, but when there are juries, they do decide damages / Burden of proof is much lower - preponderance of the evidence. / The 5th amendment right against self incrimination does apply to civil cases. You can "plead the 5th" and refuse to answer a question, if in doing so you might open yourself to criminal prosecution.
Does CJ Funnel reflect that a life of crime pays?
No. 1,000 felonies refers to crimes committed, 54 convictions refers to individual criminals, many of whom are career criminals and commit multiple crimes
Alternative dispute resolution
Objectives: to provide a faster, cheaper, and better quality system of dispute resolution / 4 very broad processes: Conciliation, Mediation, Arbitration, Process similar to trial procedures
Jury trial penalty - Jost
One study estimated that sentences imposed after guilty pleas were 30-40 percent as long as those imposed after trial
Bordenkircher v. Hayes (1978)
Paul Lewis Hayes was charged with forgery, an offense which carried a two-to- ten-year prison sentence. During plea negotiations, the prosecutor offered to pursue a five year sentence if Hayes would plead guilty. However, the prosecutor also stated that he would seek an indictment under the Kentucky Habitual Crime Act if the defendant did not register this plea. (Hayes had two prior felony convictions on his record.) If found guilty under this law, Hayes would be imprisoned for life. Hayes did not plead guilty and the prosecutor followed through on his promise. Does the Fourteenth Amendment's Due Process Clause prohibit state prosecutors from carrying out a threat made during plea negotiations to re-indict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged? No.
Santobello v NY 1971
Petitioner brought appeal after he made a plea bargain and was later sentenced to a maximum sentence. / Facts. Petitioner, Santobello, withdrew a not guilty plea to two felony counts and pleaded guilty to a lesser-included offense, after negotiations with a prosecutor. When he appeared for sentencing, several months later, a new prosecutor recommended the maximum sentence and he was sentenced as such. Petitioner attempted to withdraw his guilty plea; however, his conviction was upheld. He appealed. / Issue. Whether a guilty plea can be withdrawn post-sentencing when a plea bargaining agreement has been broken. / Plea bargains are considered an important part of the judicial process and should not be dismissed.
Discovery
Pre-trial exchange of information by the parties. It can involve different methods, including: Depositions, Interrogatories, Document requests
2 ways to determine probable cause
Preliminary hearing: An adversarial hearing in front of a judge where both sides will have the opportunity to present evidence. Waived in majority of cases. Grand juries: more time-consuming and expensive. Consist of anywhere from 6-23 jurors, and are non-adversarial proceedings in that only the prosecutor presents evidence.
OJ Simpson trial
Prosecutors had to rely on circumstantial evidence, jury was left with a reasonable doubt
Arguments for tort reform
Reduces abuse of the justice system which results from the filing of many frivolous cases, or demanding outrageous damages. / Combats lawyers abusing the system to get rich through the use of contingency fees / Current system encourages so-called "Robin Hood" juries / Damages our economy and in particular certain professions or industries / In the end, the cost is always passed on to the consumer / Damages the credibility of the civil justice system by turning it into a lottery
preventive detention-formal
SC set precedent that bail not required, protect community over individual right
Conciliation
The conciliator will most often not even bring the parties together, but looks over the facts and suggests a possible solution or solutions.
Arguments against tort reform
The tort system is a valuable protector against rapacious industries that want larger profits and limited liability / Serves as check on certain industries and professions to insure they are looking out for the public's safety and well-being / It is a matter of basic fairness in terms of facilitating access to the justice system for those who otherwise would have little chance against much more powerful adversaries. (one-shotter/repeat player tension)
dispute to resolution-lawyer role
They tell the client what the law says about the case, what can happen next in the normal course of event, and what the lawyer intends to do about the case. / Assess whether going to court will be worth it, exacerbate conflict between the parties (if there is a relationship between the two they may want to avoid litigation if they want to keep relationship in tact i.e. marriage/divorce; business partnerships), Real world costs - a completely rational party will file suit only if the benefits of winning exceed the costs of losing. / Determine if the client has a case, and if so, what it is the client wants. If there is an attorney on the other side, the lawyer may contact him or her directly to see if some settlement can be arrived at.
real property cases
Trespass, Ownership, Rights of way
class action lawsuit
a group (class) sues another party
3 forms of plea bargaining
charge-change/negotiate charge, count-# counts of charge reduced, sentence-reduce severity of sentence
vanishing trial
civil trials have become very rare, majority are tort. result of culture/society?
structured sentencing
classifies offenders on the basis of the severity of the crime committed and on the extent and gravity of their prior criminal record
truth in sentencing
collection of public policy stances on sentencing of those convicted of crimes in the justice system. In most contexts truth in sentencing refers to policies and legislation that aim to abolish or curb parole, so that convicts serve the period that they have been sentenced to. Truth in sentencing advocates relate such policies in terms of the public's right to know
Possible judgements include-
compensatory damages punitive damages an injunction a specific performance
If no settlement, civil complaint-
complaining party: identifies the defendant summarizes the facts and the harm suffered explains what remedy is sought.
