CRJ-140 Chapter 8-10

"Good time" (aka sentence reduction programs)

"Good time" - A reduction in time served by prisoners based on good behavior, conformity to rules, and other positive behavior. Sentence-reduction programs promote discipline within a correctional institution and reduce overcrowding, so many prison officials welcome them.

Barker v. Wingo (1972) Ruling

"Only in situations in which the delay is unwarrented and proved to be prejudicial can the accused claim a violation of Sixth Amendment rights"

According to Prof. Hubert Packer, punishing criminals serves two ultimate purposes:

"The deserved infliction of suffering on evil doers" and the "prevention of crime"

The main goal of jury selection is...

"To produce a cross section of the population in the jurisdiction where the crime was committed"

5th Amendment Rights

- Grand jury indictments (capital/infamous crime) - double jeopardy - self-incrimination (miranda) - due process

8th Amendment Rights

- right to bail - "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

4th Amendment Rights

- search and seizures - warrant requirement - probable cause - privacy

6th Amendment Rights

- speedy and public trial (The sixth amendment's guarantee of a speedy trial does not apply until a person has been accused of a crime) - impartial jury - confrontation - compulsory process - right to counsel

Prosecuting attorney's screening factors for deciding when to prosecute and when to "noll" (not pursue or prosecute)

-Sufficient evidence for conviction (NOT JUST GUILT) -Offense seriousness -Uncooperative victims (victims who refuse to cooperate with the prosecutor to pursue charges - as many as 80% of domestic violence victims refuse to cooperate with the prosecution) -Unreliability of victims - A prosecutor may be willing to drop a case or reduce charges against a defendant who is willing to testify against other defendants

Two types of challenges attorneys can exercise during Voir Dire:

1. A Challenge for Cause - A Voir Dire challenge for which an attorney states the reason why a prospective juror should not be included on the jury. - Attorneys must provide the court with a sound, legally justifiable reason why potential jurors are "unfit" to serve. Eg) mentally incompetent, do not understand English, or are proved to have a prior link - be it personal of financial - with the defendant or victim 2. Peremptory Challenge - Voir Dire challenges to exclude potential jurors from serving on the jury without any supporting reason or cause. - These challenged are based solely on an attorney's subjective reasoning. Due to the rather random nature of peremptory challenges, each state limits the number that an attorney may utilize: between 5 and 10 for felony trials (depending on the state) and between 10 and 20 for trials that could possibly result in the death penalty. - Once the attorney's peremptory challenges are used up, he or she must accept forthcoming jurors, unless a challenge for cause can be used

Victims are most interested in three things that have little to do with revenge:

1. An opportunity to participate in the (punishment) process 2. Financial reparations 3. An apology

Sentences imposed are also called "dispositions" Four primary types are..

1. Capital Punishment - Option in 32 states. Reserved normally for those who commit first degree murder (premeditated killing). Also an option in federal court, where a defendant can be put to death for murder, as well as trafficking in a large amount of illegal drugs, espionage (spying), and treason (betraying the U.S.) 2. Imprisonment 3. Probation 4. Fines - can be levied by judges in addition to incarceration or imprisonment or independently of other forms of punishment. When a fine is the only punishment, it usually reflects the judge's belief that the offender isn't a threat to the community and doesn't need to be imprisoned or supervised.

Steps in a criminal trial

1. Choosing the jury 2. Venire is the next step in gathering the jury 3.

Two types of testimonial evidence

1. Direct evidence: Evidence that has been witness by a person giving testimony. Evidence that establishes the existence of a fact without relying on inference. 2. Circumstantial evidence: Indirect evidence that, even if believed, does not establish the fact in question but only the degree of likelihood of that fact. In other words, circumstantial evidence, can create an inference that a fact exists.

Generally, a "not guilty" plea in the face of strong evidence is part of one of 3 strategies:

1. Gain a more favorable plea bargain 2. Challenge a crucial part of evidence on constitutional grounds 3. Submits an affirmative defense (What are these?)

What are the two formal procedures that may be used to establish probable cause by the prosecution early in the pretrial process?

1. Preliminary hearings 2. Grand Juries

4 basic philosophical reasons for sentencing:

1. Retribution 2. Deterrence 3. Incapacitation 4. Rehabilitation

Affirmative Defense Strategies

1. Self-defense 2. Insanity 3. Duress 4. Entrapment

State legislatures generally set jury requirements and they are similar in more states. For the most part, jurors must be...

1. US Citizens 2. Eighteen or over 3. Free of felony convictions 4. Healthy enough to function in a jury setting 5. Sufficiently intelligent to understand the issues of a trial 6. Able to read, write, and comprehend the English language with one exception - New Mexico New Mexico does not allow non-English-speaking citizens to be eliminated from jury lists . Spanish-speaking jurors here require the use of a court interpreter to translate the proceedings for them. In all states, court interpreters are often used to help a defendant, witness, or other key trial participant understand what is being said in court.

Bail Bond Agent

A businessperson who agrees, for a fee, to pay the bail amount if the accused fails to appear in court as ordered. The defendant must usually give the bond agent a certain percent of the bail in cash - frequently 10 percent. Because bail bonds are a form of insurance, most jurisdictions require bail bond agents to obtain a license from the state Department of Insurance before starting business.

In re Winship (1970) Ruling

A case involving the due process right of juveniles, the Supreme Court ruled that the Constitution requires the reasonable doubt standard because it reduces the risk of innocent people and therefore reassures Americans of the law's moral force and legitimacy. "Beyond a reasonable doubt"

Indictment

A charge or written accusation, issued by a grand jury, that probable cause exists to believe that a named person has committed a crime. Defendants are indicted at over 99% in Grand Juries

Arraignment (left off at pg. 166)

A court proceeding in which the suspect is formally charged with the criminal offense stated in the indictment (grand jury) or information (preliminary hearing). At the arraignment the defendant is informed of the charges and must respond by pleading guilty or not guilty. In SOME states the defendant may also please "nolo contendere" Arraignment is one of the ways in which due process requirements are satisfied by criminal procedure law.

Acquittal

A declaration following a trial that the individual accused of the crime is innocent in the eyes of the law and is thus is absolved from the charges.

Powers v. Ohio (1991) Ruling

A defendant may contest race-based peremptory challenges even if the defendant is not of the same race as the excluded jurors.

Release on Recognizance (ROR)

A judge's order that releases an accused person from jail with the understanding that he or she will return of his own free will for further proceedings. Those suspected of a felony are rarely ROR. The Vera Institute, a nonprofit in NYC, introduced the concept as part of the Manhattan Bail Project in 60's. When properly administered, less than 5 percent of participants fail to show up for trial.

Statute of Limitations

A law limiting the amount of time prosecutors have to bring criminal charges against a suspect after the crime has occurred.

Bench Trial

A trial conducted without a jury, in which a judge makes a determination of the defendant's guilt or innocence. If a defendant waives her or his right to trial by jury, a bench trial takes place.

Lay Witness

A witness who can truthfully and accurately testify on a fact in question without having specialized training or knowledge.

"Nolle Prosequi" Latin for "unwilling to pursue"

About half of adult felony cases brought to prosecutors by police are dismissed through "nolle prosequi" District attorneys do not have the resources to prosecute every arrest and they must choose how to distribute their scarce resources.

Initial Appearance

After the arrest, the suspect's first appearance before a judge or magistrate in which the judge or magistrate informs the defendant of the charges brought against them and their constitutional rights (particularly the right to remain silent (5th) and the right to counsel (6th). The Supreme Court has held that this appearance must occur promptly - within 48 hours of booking

Property Bond

An alternative to posting bail in cash, in which the defendant gains pretrial release by providing the court with property valued at the bail amount as assurance that he or she will return for trial. Most courts require property valued at double the bail amount.

Victim-offender-dialogue (VOD)

An increasingly popular offshoot of the restorative justice movement. This practice centers on face-to-face meetings between victims and offenders in a secure setting at the offender's prison. Today, more than half of state corrections departments support VOD programs within their prisons.

Preliminary Hearings

An initial hearing in which a magistrate decides if there is probable cause to believe that the defendant committed the crime with which he or she is charged; the judge or magistrate decides whether the evidence presented is enough to proceed to trial. Every person arrested has a right to this hearing within a reasonable amount of time - usually no later than 10 days if the defendant is in custody or 30 days if he has gained pretrial release Defense attorneys commonly advise their clients to waive their rights to a preliminary hearing.

Hearsay

An oral or written statement made by an out-of-court speaker that is later offered in court by a witness (not the speaker) concerning a matter before the court. For the most part hearsay is not admissable as evidence. -Cross-examination is linked to problems presented by hearsay evidence. -"Dying declarations" and admissions of wrongdoing are allowed by the rules of most states because in these instances the person overheard does not have incentive to lie.

States that allow juries to make the sentencing decision

Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia

Swain v. Alabama (1965) Ruling

Assertion that blacks have the same right to appear on a jury as whites. However, the Court mirrored the apparent racism of society as a whole by protecting the questionable actions of many prosecutors.

Opening Statements

Attorneys may choose to open the trial with a statement to the jury, though it is not required. In these opening statements, the attorneys give a brief version of the facts and the supporting evidence that they will present during the trial. The opening statement is a kind of "road map" that describes the destination that each attorney hopes to reach and outlines how she or he plans to reach it.

The "Shield" and "Sword" of the Grand Jury (and the "Rubber Stamp")

By giving citizens the chance to review government charges of wrongdoing, it "shields" the individual from the power of the state. The grand jury offers the government a "sword" - the opportunity to provide evidence against the accused - in its effort to fight crime and protect society. Critics say the "shield" aspect of the Grand Jury does not work and that the grand jury functions as little more than a rubber stamp for the prosecution.

Presentence investigative report

Compiled by a probation officer, the report describes the crime in question, notes the suffering of any victims, and lists the defendant's prior offenses (as well as any alleged but uncharged criminal activity). Also contains a range of personal data such as family background, work history, education, and community activities - info that isn't admissable as evidence during trial. Report also includes a sentencing recommendation Important for judges using "informed discretion" under various states' "indeterminate sentencing guidelines"

Lockyer v. Andrade (2003)

Court ruling that upheld California's "three-strike" law

Adamson v. California (1947) Ruling

Decision that using the defendants' refusal to testify against them effectively invalidates the Fifth Amendment right again self-incrimination. Judges are no required to inform the jury that an accused's decision to remain silent cannot be held against him or her.

Deterrence - two forms

Deterrence is the strategy of preventing future crime through the threat of punishment. Deterrence can take two forms: General and specific. The basic idea of general deterrence is that by punishing one person, others will be discouraged from committing a similar crime. Specific deterrence assumes that an individual, after being punished once for a certain act, will be less likely to repeat that act because they do not want to be punished again. - A relatively small number of people are responsible for the majority of certain criminal acts`

Prejudicial Evidence

Evidence that may be excluded because it tends to distrct the jury from the main issues of the case, mislead the jury, or cause jurors to decide an issue on an emotional basis. In practice, this rule often precludes prosecutors from using prior purported criminal activies or actual convictions to show that the defendant has criminal propensities or an "evil character." This concept it codified in the Federal Rules of Evidence, which state that evidence of "other crimes, wrong, or acts is not admissable to prove the character of a person in order to show actions in conformity therewith." Such evidence is allowed only when it doesn't apply to character and focuses instead on "motive, opportunity, intent, preperation, plan, knowledge, identity, or absence of mistake or accident." p.177

Evidence - two types

Evidence: Anything that is used to prove the existence or nonexistence of a fact. 1. Testimony: Verbal evidence given by witnesses under oath. 2. Real evidence: Evidence that is brought into court and seen by the jury, as opposed to evidence that is described for the jury. Presented in the form of exhibits, includes any physical evidence - such as the murder weapon or bloodstained piece of clothing - that affect the case

Bail Tariffs

Guidelines set by each jurisdictions concerning the proper amount of bails. For misdemeanors, police usually follow a preapproved bail schedule created by local judicial authorities. In felony cases, the primary responsibility to set bail lies with the judge.

Duncan v. Louisiana (1968) Ruling

In all felony cases, the defendant is entitled to a jury trial. However, the court has left it up to the states to decide whether juries are required for misdemeanor cases

"Nolo Contendere"

Latin for "I will not contest it." A criminal defendant's plea in which he or she chooses not to challenge, or contest, the charges brought by the government. It is neither an admission or denial of guilty. The consequences for someone who pleads guilty and for someone who pleads "nolo contendere" are the same in a criminal trial, but the latter plea cannot be used in a subsequent civil trial as an admission of uilty.

Prima Facie

Latin for "at first sight." Legally, it refers to a fact that is presumed to be true unless contradicted by evidence.

Corpus Delicti

Latin for "body of the offense" A legal term that refers to the substantial facts that show a crime has been committed. - By establishing such facts through the presentation of relevant and nonprejudicial evidence, the prosecutor hopes to convince the jury of the defendant's guilt

Habeas Corpus

Latin for "you have the body" A judicial order that commands a corrections official to bring a prisoner before a federal court so that the court can hear the convict's claim that he or she is being held illegally. A writ of "habeas corpus" differs from an appeal in that it can be filed only by someone who is imprisoned

Plea Bargaining

Most often takes place after the arraignment and before the beginning of the trial. In simplest terms, it is a process by which the accused, represented by the defense counsel, and the prosecutor work out a mutually satisfactory disposition of the case, subject to court approval. Accounts for 97% of criminal convictions in state courts.

Indeterminate Sentencing

Penal codes with indeterminate sentencing policies set a minimum and maximum amount of time that a person must spend in prison. Within these parameters, a judge can prescribe a particular term, after which an admin. body known as the parole board decides at what point the offender is to be released.

Santobello v. New York (1971) Ruling

Plea bargaining "is not only an essential part of the process but a highly desirable part for many reasons."

From the 1930's to the 1970's, what theories of justice held sway?

Rehabilitative. Indeterminate sentencing practices were guided by the theory of "individualized justice." Judicial discretion rests on the assumption that a judge should be given ample leeway in determining punishments that fit both the crime and the criminal

Rummel v. Estelle (1980)

SC ruling that Texas's habitual offender statute did not contitute "cruel and unusual punishment" under the 8th amendment

What percent of indictments lead to the courtroom?

THREE PERCENT

Batson v. Kentucky (1986) Ruling The "Batson Reversal"

The Court declared that the Constitution prohibits prosecutors from using peremptory challenges to strikes possible jurors on the basis of race. Under the Batson ruling, the defendant must prove the prosecution's use of a peremptory challenge was racially motivated with a number of legal steps: 1. The defendant must make a "prima facie" case that there has been discrimination during Venire 2. To do so, the defendant must show he is a member of a recognizable racial group and the prosecutor has used peremptory challenges to remove members of this group from the jury pool. 3. Then, defendant must show that these facts and other relevant circumstances raise the possibility that the prosecutor removed the prospective jurors solely because of their race. 4. If the court accepts the defendant's charges, the burden shifts to the prosecution to prove that its peremptory challenges were race neutral. If the court finds against the prosecution, it rules that a Batson violation has occured.

Georgia v. McCollum (1992) Ruling

The Court placed defense attorneys under the same restrictions as prosecutors when making race-based peremptory challenges.

J.E.B. v. Alabama ex rel. T.B. (1994) Ruling

The Supreme Court extended the principles of the Batson ruling to cover gender bias in jury selection. The case was a civil suit for paternity and child support brought by the state of Alabama.

"Real Offense"

The actual offense committed, as opposed to the charged levied by a prosecutor in a plea bargain (conviction offense).

Bail

The dollar amount or conditions set by the court to ensure that an individual accused of a crime will appear for further court proceedings.

Direct Examination

The examination of a witneess by the attorney who calls the witness to the stand to testify. During direct examination, the prosecutor will usually not be allowed to ask "leading questions" - questions that might suggest to the witness a particular desired response

Grand Jury

The federal government and about 1/3 of the states require a grand jury to make the decision as to whether a case should go to trial. Grand juries are impaneled - created - for a period of time usually not exceeding three months. During that time, the grand jury sits in a closed (secret) session and hears only evidence presented by the prosecutor. The grand jury is the group of citizens called to decide whether probable cause exists to believe that a suspect committed the crime with which she or he has been charged.

Information

The formal charge against the accused issued by the prosecutor after a preliminary hearing has found probable cause.

Master Jury List (aka the jury pool)

The list of citizens in a court's district from which a jury can be selected; compiled from voter-registration lists, driver's license lists, and other sources.

Confrontation Clause

The part of the Sixth Amendment that guarantees all defendants the right to confront witnesses testifying against them during the criminal trial. The Confrontation Clause gives the accused, through his or her attorneys, the right to cross-examine the witness

Voire Dire (French for "to speak the truth")

The preliminary questions that the trial attorneys ask prospective jurors to determine whether they are biased or have any connection with the defendant or a witness. Jurors are required to provide the court with a significant amount of personal information including home address, marital status, employment status, arrest record, and life experiences. Involves both written and oral questions. Voir dire is the attorney's only chance to with individual jurors. During the Voir Dire, the attorney for each side may exercise a certain number of challenges to prevent particular persons from serving the jury.

Case Attrition

The process through which prosecutors, by deciding whether to prosecute each person arrested, effect an overall reduction in the number of persons prosecuted. Only 35 of 100 felony arrests are prosecuted, and only 18 of these prosecutions lead to incarceration -> fewer than 1 in 3 adults arrested for a felony sees the inside of a prison or jail cell. That reduction is a phenomenon known as case attrition and can be explained in part by prosecutorial discretion.

Cross-Examination

The questioning of an oposing witness during a trial. Cross-examination allow the attorneys to test the truthfulness of opposing witnesses and usually entails efforts to create doubt in the jurors' minds that the witness is reliable. After the cross-exam, the prosecutor may want to reestablish any reliability that may have been lost by again questioning the witness in a process known as "redirect examination." Each side has two opportunities to question a witness.

Preventative Detention

The retention of an accused person in custody due to fears that she or he will commit a crime if released before trial. A.k.a large bail amount

Venire (Latin for "to come")

The venire is composed of all those people who are notified by the clerk of the court that they have been selected for jury duty. Those selected to be a part of the venire are ordered to report to the courthouse on the date specified by the notice.

Participants in the "sentencing ritual"

Two main participants are the judge and the defendant, but prosecutors, defense attorneys, and probation officers also play a role in the proceedings.

The "CSI Effect"

When possible, defense attorneys will almost make the argument that the state has failed to present any evidence other than circumstantial evidence against their client. This tactic has been aided a recent phenomenon known as the "CSI Effect" which have fostered unrealistic notions among jurors as to what high-forensic science can accomplish as part of a criminal investigation. In reality, the kind of evidence used to solve crimes on CSI is often not available to prosecution which must rely instead on witnesses and circumstantial evidence.

In terms of public opinion, periods of rehabilitative justice are marked by a transfer of this power to...

judges