Criminal Procedure

Indictment

A written accusation of the crime allegedly committed by the defendant Finding by the grand jury that there is adequate evidence to charge the defendant and bring him or her to trial

Plea bargain

At any time, the prosecutor and defendant can make an agreement in which the prosecutor agrees to reduce charges, drop charges, or recommend a certain sentence if the defendant pleads guilty. This benefits both parties. The defendant gets a lighter sentence and the prosecution saves time and resources by not trying the case.

Information

A formal accusation stating the facts and specifying the violation of criminal law A document, prepared by the prosecutor and presented to the magistrate, which demonstrates that there is enough evidence to charge the defendant and bring him or her to trial

Booking

After an individual is arrested, the procedure of recording the name of the defendant and the alleged crime in the investigating agency's or police department's records.

Arrest

The action in which a police officer or a person acting under the law takes a person into custody.

Insanity

The defendant had a severe mental illness that substantially impaired the defendant's capacity to understand and appreciate the moral wrongfulness of the act

Justifiable use of force

use of force was necessary to prevent imminent death or great bodily harm to the defendant or to another or to prevent the imminent commission of a forcible felony

Summary of the steps of a civil procedure

1. Arrest 2. Booking 3. First Appearance 4. Information (for misdemeanor) / Indictment by a Grand Jury (for felony) 5. Arraignment 6. Trial 7. Appeal

Criminal procedure differs from civil procedure in several key ways:

1. First, the government, referred to as the prosecutor, always brings the criminal case. In a civil case, the plaintiff can be an individual, business, or gov entity 2. Second, the outcome is different. In a criminal case, the objective is punishment, so the defendant may be fined or imprisoned. In a civil case, the objective is to remedy a wrong done to the plaintiff, so the defendant either will have to provide compensation or may be subject to an equitable remedy. 3. Third, because the potential impact of losing a criminal case is more serious than losing a civil case, the Constitution provides a number of safeguards for the criminal defendant

Trial Procedure

1. If the case goes to trial and the crime is a felony or a misdemeanor punishable by 6 months or more in prison, the defendant has a constitutional right to a jury trial. Or, the defendant can waive this right and have a bench trial. 2. In a criminal trial, the prosecutor must meet the two elements of the burden of proof 3. The prosecution presents the government's case first. Then, it is the defendant's turn. 4. The defendant can either show that the prosecution did not meet its burden of proof or can present an affirmative defense 5. After the jury hears the case, it deliberate and tries to reach a verdict. If the jury finds the defendant not guilty, the accused is acquitted and released. If the jury returns a guilty verdict, the judge sets a date for sentencing.

Affirmative Defenses to Crimes

1. Infancy 2. Mistake of fact 3. Intoxication 4. Insanity 5. Duress 6. Entrapment 7. Necessity 8. Justifiable use of force

Steps of Criminal Procedure

1. Pretrial procedure 2. Trial procedure 3. Posttrial procedure

Pretrial Procedure

1. Prior to an arrest, grand juries may conduct criminal investigatory proceedings or issue a grand jury subpoena for company records. 2. Criminal proceedings generally begin when an individual is arrested for a crime, but an arrest warrant must be obtained first. To obtain an arrest warrant, probable cause must be established. A magistrate issues the warrant. 3. After being arrested and read their Miranda rights, defendants are taken to the police station for booking. 4. After the prosecutor files the complaint, the defendant makes the first appearance. 5. If the defendant pleads guilty, the magistrate sentences the individual. If he claims innocence, the magistrate ensures that the defendant has a lawyer and sets bail 6. Next, the prosecutor choose whether or not to proceed with criminal action and provides evidence through an information or an indictment, depending on the severity of the crime 7. If the grand jury issues an indictment, the defendant appears in a court in a proceeding called the arraignment. He then enters a plea of guilty, not guilty, or nolo contendere. If he pleads not guilty, his case will be heard before a petit jury.

Two elements of 'burden of proof'

1. burden of production of evidence: the prosecution must produce any tangible evidence and testimony that prove the elements of the crime that the defendant allegedly committed 2. burden of persuasion: the prosecutor must persuade the jury 'beyond reasonable doubt' that the defendant committed the crime

Constitutional Provisions that Safeguard Criminal Defendants' Rights

4th Amendment: protection from unreasonable search & seizure; restrictions on warrants 5th Amendment: prohibition of double jeopardy; right not to incriminate oneself' right to due process 6th Amendment: right to a speedy and public trial; right to a trial by an impartial jury of one's peers; right to be informed of the accusations against oneself; right to confront witnesses; right to have witnesses on one's side; right to counsel at various stages of the proceedings 8th Amendment: freedom from excessive bail or fine; freedom from cruel and unusual punishment 14th Amendment: extension of the right to due process in all state matters; extension of most constitutional rights to defendants at the state level

Arrest warrant

A law enforcement officer should obtain an arrest warrant before an individual is taken into custody. Ordinarily, to obtain an arrest warrant, the law enforcement against must demonstrate that there is probable cause. A magistrate, the lowest-ranking judicial official, issues the arrest warrant. In certain circumstances, courts have recognized that law enforcement agents can arrest a suspect without a warrant if the officer believes there is probable cause but not enough time to obtain the warrant

Probable cause

A likelihood that a suspect committed or is planning to commit a crime

Infancy

A person who is not yet a legal adult may use this defense to defuse the "guilty mind" requirement of a crime

Nolo contendere

A plea in which the defendant does not admit guilt but agrees not to contest the charges. The advantage of a nolo contendere plea over a guilty plea is that the former cannot be used against the defendant in a civil suit.

Affirmative defense

A reason the defendant, even though he/she committed the physical acts alleged by the prosecuted, should be excused from responsibility for those actions.

The verdict

After the jury hears the case, it deliberates and tries to reach a verdict. A jury that is unable to reach a verdict is known as a hung jury. If the jury finds the defendant not guilty, the accused is acquitted and released. If the jury returns a guilty verdict, the judge sets a date for sentencing.

First appearance

After the prosecutor files the complaint, the defendant makes the first appearance. This is the initial appearance of an arrested individual before a magistrate, who determines whether there was probable cause for the arrest. If the judge ascertains that probable cause did not exist, the individual is freed.

Sentencing

Before 1991, sentencing was 'indeterminate', with judges allowed but not required to engage in free-form fact-finding before selecting the appropriate punishment within broad statutory ranges. In 1991 there was a shift to 'determinate' sentencing, under which federal sentences are determined largely by sentencing guidelines prescribing a specific range of possible penalties for each crime.

Petit jury

If the defendant pleads not guilty, his case will be heard before this small fact-finding jury

Arraignment

If the grand jury issues an indictment, the defendant appears in court to answer the indictment in this proceeding. At this time, the defendant enters a plea of guilty or not guilty, or of nolo contendere.

Posttrial procedure

If the petit jury returns a verdict of not guilty, the gov cannot appeal the acquittal. However, if the verdict is guilty, the defendant may appeal the verdict by claiming that a prejudicial error of law occurred at the original trial. If there is no appeal, the defendant will be sentenced after the judge has received additional information relevant to sentencing.

Proceeding with criminal action

If the prosecutor chooses to proceed with criminal action, the prosecutor must demonstrate the likelihood that the defendant's actions and intent meet the elements of a crime by charging the defendant with a crime through an 'information' or an 'indictment.' For a misdemeanor, the prosecutor must present to the magistrate evidence sufficient to justify prosecution of the defendant through a written document called an 'information.' For a felony, the prosecutor must present a grand jury with evidence adequate to justify bringing the defendant to trial. If the grand jury agrees that the evidence is adequate, it issues an 'indictment.'

Burden of proof

In a criminal trial, the prosecutor has the burden of proof and the defendant does not have to prove anything. This is the duty of the prosecutor to establish a claim by admissible evidence and prove that the defendant committed all the essential elements of the crime beyond any reasonable doubt, in order to convict the defendant.

Bench trial

In most states, if the defendant waives the right to a jury trial, the judge will hear the case. This type of trial is when the judge is the fact finder in a case.

Factors to consider in sentencing

Judges are given certain factors to consider in sentencing, such as the defendant's criminal record. Guidelines have also been established for white-collar crimes, once again allowing judges to consider individual factors, such as the company's history of past violations and cooperation with federal investigators. In 2015, the US Sentencing Commission approved new sentencing guidelines for business fraud crimes in response to "longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender's intent." One of the most significant changes involves how "intended loss" is understood. In another change, the financial situation of the victims of the fraud is now being considered.

The defendant's case

Once the prosecution rests its case, it is the defendant's turn. The defendant either: 1. can show, through examination of witnesses and introduction of evidence, that the prosecution did not meet its burden of proof, OR 2. can present an affirmative defense

Public-safety exception to the Miranda rights

The Miranda rights are not absolute. This exception allows statements to be used at trial, even if a person was not informed of his/her Miranda rights, if the need to protect the public is served by the admissibility of the statements in question

Should the case be prosecuted?

The Principles of Federal Prosecution, established by the US Department of Justice, suggest that at the federal level the decision to prosecute depends on 2 primary factors: 1. whether the evidence is sufficient to obtain a conviction 2. whether prosecuting the case serves a federal interest If the prosecutor decides not to go forward with the case, the defendant may still be liable for his/her actions in civil court

Bail

The amount of money defendants pay to the court on release from custody as security that they will return for trial

Intoxication

The defendant says he or she took an intoxicant without awareness of its likely effect, mistook its identity, or took the intoxicant under force

Duress

The defendant says he or she was forced to perform an act against his or her will

Mistake of fact

The defendant says his or her honest and reasonable mistake about a fact relevant to the commission of the crime negates the idea of a guilty mind

Necessity

The defendant was acting to prevent imminent harm, and there was no legal alternative to the action he or she took

Entrapment

The defendant would not have committed the crime or broken the law if not induced or tricked into doing so by law enforcement officers

Intended loss

The financial harm that was intended to result from the fraud; Now interpreted as the loss that the defrauder intended to cause and not necessarily only the loss that was actually caused

Financial hardship

The financial situation of the victims of the fraud is now being considered. This means that is a person defrauds another person who experienced 'financial hardship' as a result of the fraud (such as bankruptcy, harm to the ability to gain credit, substantial losses in investments such as retirement or education, or substantial changes in living arrangements) harsher sentences may be invoked.

Role of the grand jury

The grand jury does not determine guilt. It is simply a group of citizens who consider evidence of criminal conduct presented by the prosecutor and then determine whether there is enough evidence to try the defendant for the crime. In federal cases, a defendant accused of a felony ha a constitutional right to a grand jury indictment. However, a felony prosecution may proceed by information if the defendant waives that right. Federal misdemeanor cases may proceed by indictment or information.

The prosecutor's case

The prosecution presents the government's case first, introducing evidence and examining witnesses to prove beyond a reasonable doubt that the defendant committed the crime.

Miranda rights

When law enforcement agents arrest individuals, the officers must inform the individuals of these rights. 1. "You have the right to remain silent and refuse to answer any questions." 2. "Anything you say may be used against you in a court of law." 3. "You have the right to consult an attorney before speaking to the police and have an attorney present during any questioning now or in the future." 4. "If you cannot afford an attorney, one will be appointed for you before the questioning begins." 5. "If you do not have an attorney available, you have the right to remain silent until you have had the opportunity to consult with one." 6. "Now that I have advised you of your rights, are you willing to answer any questions without an attorney present?"