Judicial Process - Unit 3

Primary functions of grand juries

"shield and sword". The Shield refers to the protections the grand jury offers, serving as a buffer between the state and its citizens against warrantless prosecutions. The Sword refers to the investigatory powers of this body. If the grand jury believes there are grounds for holding a suspect for trial, they return an indictment, also termed a true bill or billa vera, meaning that they find the charges to be true. If they find that there is no probable cause the defendant has committed the crime, they return a no bill, or no true bill. One unique aspect of the grand jury is secrecy. Because the grand jury may find insufficient evidence to indict, it works in secret to shield those merely under investigation from adverse publicity. Indictments are returned by a plurality vote. In most states, half to two-thirds of the votes are sufficient to hand up an indictment. Trial juries can convict only if the jurors are unanimous, or in 4 states, nearly unanimous. Witnesses before the grand jury have no right to representation by an attorney. Suspects do not have the right to go before the grand jury to protest their innocence or even to present their version of the facts.

Why don't people report their victimization to the police?

- They deal with the issue in another way, such as reporting the incident to a guard, manager, parent, school official, etc. - They feel as though the incident is not important enough to report. - They feel that the police would not or could not help them. - They fear reprisal (act of retaliation) from the offender. This is common in sexual assault victims. - They do not want to get the offender in trouble with the law. This is common in people who's friends or intimate partners commit crimes.

4 types of charging documents

-Complaint -information -arrest warrant -indictment Which one that is used depends on the severity of the offense, applicable state law, and local customs.

Reasons for requiring an initial appearance without unnecessary delay

-to verify that the person arrested is the person named in the complaint -to advise arrested persons of the charges, so that they may begin to prepare a defense - to advise arrested persons of their rights, such as the right to counsel, the right to remain silent, and the right to either a preliminary hearing or a grand jury indictment. - to protect arrested persons from being abandoned in jail and forgotten by, or otherwise cut off from contact with people who can help them - to prevent secret and extended interrogation of arrested persons by law enforcement officers. - to give arrested persons an early opportunity to secure release on bail while awaiting the final outcome of the proceedings. If the person has been bailed earlier, the magistrate simply reviews that bail. Release on personal recognizance may also be granted at the initial appearance. - to give arrested persons an opportunity to speedily conclude proceedings on charges of minor offenses by pleading guilty to the charges, paying fines, and carrying on with their lives. - to obtain a prompt, neutral "judicial determination of probable cause as a prerequisite to extend restraint of liberty following arrest." As a general rule, the Supreme Court expects the initial appearance to occur within 48 hours of a warrantless arrest, inclusive of weekends. With indictments, an initial appearance is not mandated. For felony arrests, a plea is not entered at the initial appearance because the initial appearance occurs in a trial court of limited jurisdiction*, which has NO authority to accept a plea.

Layers of the Criminal Justice Wedding Cake

1. Celebrated Cases 2. Serious Felonies 3. Lesser Felonies 4. Misdemeanors

4 Doctrines that mitigate the harsh effects of preventing the use of both illegally obtained evidence and the fruits derived from the illegality

1. Good faith- when police act in good faith on a warrant or statute reasonably believed to be valid, but is later determined to be a defective warrant or an unconstitutional statute, their good faith reliance on the warrant or law usually allows the evidence collected to be admissible. However, the police cannot be said to have acted in good faith if a warrant is obviously defective, such as if it lacks a description of the things or persons to be searched, or if police provide deliberately or recklessly false information to obtain the warrant. 2. If evidence is obtained through a source that is independent of any unconstitutional police actions, then the independent source doctrine will allow such evidence to be admitted at trial. This is an exception to the fruit of the poisonous tree doctrine. It allows the admission of tainted evidence if that evidence was also obtained through a source wholly independent of the primary constitutional violation. 3. inevitable discovery- a court may admit illegally obtained evidence if it would have been discovered anyway through independent, lawful means. For example, police located a body by illegally interrogating the defendant in violation of his 6th Amendment right to counsel. But, since a comprehensive search for the body was already under way in the area in which the body was ultimately located, the court reasoned that the body would have inevitably been discovered anyway and, therefore, the physical evidence of the homicide is admissible. 4. A court may admit evidence obtained in a manner that is so far removed from a constitutional violation such that the initial illegality is deemed to be sufficiently attenuated/weakened. For example, federal agents arrested defendant without probable cause. Many days after he was released on bail, the defendant returned to the police station and voluntarily confessed. his actions were deemed that sufficiently removed from the illegal arrest that the attenuation exception to the exclusionary rule applied, rendering his confession admissible. Basically, if the police illegally search or arrest someone, and days/weeks/months go by and after many further proceedings the defendant provides some sort of confession/other testimony, the evidence is admissible because it is so far removed from the illegality of the initial police conduct.

Forms of Bail (list)

1. Release on personal recognizance (ROR) 2. Cash bond 3. Property bond 4. Bail bond

Two divisions of pretrial release services programs

1. an investigations unit responsible for examining an arrestee's criminal history and personal background. 2. a case management division that conducts formal risk assessments- including substance abuse and mental health screening; coordinates the program's operations with other court staff; and supervises defendants who are released.

Warrant exceptions (listed)

1. warrantless search and seizure of abandoned property, such as garbage left for collection outside a home is allowed. 2. probable cause is not required to conduct administrative inspection for compliance with regulatory schemes such as fire, health, and safety codes (inspections, etc.). 3. Police do not need a warrant to conduct an aerial surveillance of a suspect's property from an aircraft in public airspace, so long as they do so from a reasonable altitude. 4. searches conducted at any international border are allowed and do not require a warrant. 5. consented searches do not need probable cause. 6. police may conduct a warrantless search of property taken into custody. 7. warrantless searches of vehicles are allowed as long as there is probable cause to believe that the vehicle contains contraband. This includes the location in which the particular contraband might be found, such as the truck, glove compartment, luggage, and other containers in the vehicle that could hold the contraband. Police may not search the passenger compartment of a vehicle incident to a recent occupant's arrest unless it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. 8. police may search someone who is lawfully arrested "to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape". Police may search for and seize any evidence on the arrestee's person, or in the area within his/her immediate control, "in order to prevent its concealment or destruction." However, law enforcement officers must demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering with the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured. Police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. 9. Police may search open areas, even if "no tresspassing" signs are posted. Only those areas within the "curtilage" of one's home (the areas immediately adjacent to a home that the owner has taken steps to keep private, like a detached garage, a locked shed or barn, receive 4th amendment protection. These open areas include: fields, forests, open water, vacant lots, and the like. 10. when a police officer is legally in a place in which s/he sees contraband or other evidence that provides probable cause to believe criminal activity is afoot, the evidence may be seized without a warrant. The plain view doctrine has been expanded to cover other senses, such as "plain smell" and "plain touch". 11. Special needs searches in schools- neither probable cause nor a warrant is required. There needs only to be "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school". To curb alcohol and drug abuse in schools, random drug testing of students who participate in extracurricular or athletic activities may be conducted without any individualized suspicion or a warrant. Strip searches of students is not allowed. 12. Searches of public employers and/or their work spaces- neither probable cause nor a warrant is necessary for public employers to conduct searches either for work-related purposes or for investigations of work-related misconduct. This includes noninvasive seizures of bodily fluids to conduct random drug tests on public employees whose job functions make it particularly important for them to be drug-free, such as federal law enforcement agents and railroad conductors. 13. warrantless and suspicionless searches may be conducted of jail or prison cells, as well as of the person or inmates in custody, on probation, or on parole. 14. third-party disclosure- disclosure of confidential information to third parties destroys any reasonable expectation of privacy for that information. For example, there is no reasonable expectation of privacy in bank records since they are not a person's private papers, but rather are business records of banks to which bank employees have access. There is no reasonable expectation of privacy in the numbers dialed from a telephone since phone company employees have access to such information. Basically, if many people have access to something, police do too- and without a warrant, probable cause or any sort of suspicion.

UCR types of criminal offenses

2 categories: 1. Uniform Crime Reporting program 2. National Incident-Based Reporting System (NIBRS).

Why does case attrition occur?

3 facets of discretion that influence why attrition occurs: 1. legal judgements 2. policy priorities 3. personal standards of justice

Complaint form of charging document

A complaint must be supported by oath or affirmation of either the victim or the arresting officer. It is most commonly used in prosecuting misdemeanor offenses or city ordinance violations. In civil law, a complaint is the first paper filed in a lawsuit. In criminal law, a charge signed by the victim that a person named term-18has committed a specified offense.

Problems with Crime Measurement

A major weakness of both the UCR and NIBRS is that they are based only on crimes known to the POLICE. If no one reports the crime or police are not made aware of a crime, the UCR and NIBRS have absolutely no way of clocking the crime. Nobody knows about a crime that nobody knows about. Not all crimes are reported, so the UCR and NIBRS do not account for all of the crime. They underestimate total amount of crime in the United States.

Search Warrants

A search warrant is a written document, signed by a judge or magistrate, authorizing a law enforcement officer to conduct a search. The fourth amendment specifies that "no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Basically, search warrants issued by a neutral judicial officer (judge or magistrate) are the preferred mechanism for authorizing and conducting searches and seizures in the United States.

Consent surveillance

A situation in which one or more parties to a communication consents to the interception of the communication. Neither Title III nor the Fourth Amendment prevents the use of such communications in court against a nonconsenting party to the communication. A law enforcement officer or a private citizen who is a party to a communication may intercept the communication or permit a law enforcement official to intercept the communication without violating Title III or the Fourth Amendment. This exception allows a law enforcement officer or agent, an informant, an accomplice or co-conspirator, or a victim to wear a body microphone, act as an undercover agent without being wired, or eavesdrop and/or record a telephone conversation with the permission of the person receiving the call even though the person making the call has no knowledge of this activity. A private citizen, however, may not intercept a communication "for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State".

Warrantless arrest

After a warrantless arrest, all people have a right to have a "prompt hearing" in which a neutral judicial officer reviews the arrest to determine whether the arrest is supported by probable cause. The Supreme Court settled on 48 hours (from arrest to hearing), including weekends. This is called the initial appearance.

Police influence in the Criminal Justice System

Although the prosecutor has the legal authority to dominate the charging process, the police often influence the prosecutor's decision. Police and prosecutors regularly discuss cases before charges are filed. Sometimes the police exercise considerable influence by pressuring prosecutors to overcharge defendants or to file charges even though the evidence is weak. Prosecutors however, rarely need external pressure to overcharge defendants- they do so because it gives them leverage in the plea-bargaining process. In a large number of cases, prosecutors decline to file charges against those arrested by police. In most jurisdictions, the number of police arrests that result in no criminal charges being filed varies between 20-50%.

Unreasonable search and seizure

An unreasonable search and seizure occurs when law enforcement infringes upon property rights or a reasonable expectation of privacy by conducting a search or seizure without complying with the second clause of the 4th amendment, called the warrants clause. Under the warrants clause, searches and seizures unsupported by probable cause are illegal. Even if there is probable cause, a warrant that describes with particularity the items police intend to search or seize is required to conduct a search and seizure unless a recognized warrant exception applies.

Fruit of the poisonous tree doctrine

Any evidence obtained as a result of an illegal search/seizure/interrogation is inadmissible per the exclusionary rule.

Impeachment evidence

Any evidence that would cast doubt on the credibility of a witness

Preliminary hearing

Any person who has been arrested for a felony and has not been indicted by a grand jury (and has therefore been charged via an information, complaint or similar document filed by a prosecutor) has the right to a preliminary hearing. At the preliminary hearing, also called the "preliminary examination", the magistrate must determine whether probable cause exists to believe that a felony was committed and that the defendant committed it. Probably cause means that there is a fair probability, that the person arrested committed the crime(s) charged. Preliminary hearings are usually held before a lower-court judge.

Arraignment

Arraignment on felony charges occurs in the trial court of general jurisdiction. During the arraignment, the defendant is formally accused of a crime (either by information of a preliminary hearing) or indictment (of a grand jury deliberation) and is called upon to enter a plea. Arraignments for felony charges cannot happen in the trial courts of limited jurisdiction- a plea is entered at this stage of the criminal justice process and the trial courts of limited jurisdiction have no right to accept a plea. Hence, the arraignment occurs in the trial court of general jurisdiction. The initial appearance and the arraignment are similar in that the defendant must be informed with some specificity about the alleged criminal actions. The major difference is that felony defendants are not allowed to enter a plea in a lower court because the court lacks the jurisdiction to take a plea and impose a sentence on felony charges. The arraignment provides the court the opportunity to ensure that the case is on track for disposition. The judge summons the defendant, verifying his or her name and address, and the lawyer provides formal notification to the court that he or she represents the defendant in this matter. Most important, the arraignment means that the defendant must enter a plea. Typically, defendants plead not guilty and a trial date is established. The arraignment is RARELY a major decision-making stage in the process. It signifies to all members of the courtroom work group that the defendant is in all probability guilty and that the likelihood of being found not guilty is now slim.

The requirement of particularity with search warrrants

As the 4th amendment makes clear, warrants must describe with particularity "the place to be searched and the persons or things to be seized." This requirement means that warrants should be as detailed as possible. Warrants to search premises should use specific addresses when addresses are known. Warrants to search motor vehicles should include information such as the make, body style, color, year, location, license plate number, and owner or operator of the vehicle. Warrants to search particular people should include the person's name or, alternatively, a detailed description of a person whose name is unknown that includes the person's weight, height, age, race, clothing, address, aliases, and so forth. Finally, items to be seized must be described with sufficient particularity so that the officers executing the warrant: 1. can identify the items with reasonable certainty 2. are left with no discretion as to which property is to be taken.

Bail

Bail is guarantee. In return for being released from jail, the accused promises to return to court as needed. This promise is guaranteed by posting money or property with the court. If the defendant appears in the court when requested, the security is returned. If he or she fails to appear, the security can be forfeited. The practice of allowing defendants to be released from jail pending trial originated centuries ago in England.

Bail Procedures

Bail procedures vary by jurisdiction and according to the seriousness of the crime. Those arrested for minor misdemeanors can be released fairly quickly by posting bail at the police station. In most communities, lower-court judges have adopted a fixed bail schedule (also known as "emergency bail schedule"), which specifies an exact amount for each offense. Depending on the jurisdiction, bail may be set during an initial appearance, a preliminary hearing, or a separate bail hearing. The arrestee appears before a lower-court judge who must determine whether the arrestee qualifies for release on bail and, if so, what those conditions will be.

Reducing or Eliminating Commercial Bonds

Bail systems that rely heavily on money to secure pretrial release cause defendants who are unable to afford posting bail to remain in pretrial detention even though a judge has already determine that true preventative detention is not necessary. Some states have enacted legislation making comprehensive changed to their systems of bail. Some states have eliminated commercial bail to secure pretrial release for the accused. In these jurisdictions, pretrial services monitor those released pending trial.

Crime

Beginning in the early 60's, the U.S. experienced a dramatic increase in crime.

The context of Bail Setting

Deciding who to release and who to detain pending trial poses critical problems for American courts. The realities of the bail system in the United States reflect an attempt to strike a balance between the legally recognized purpose of setting bail to ensure reappearance for trial and the working perception that some defendants should not be allowed out of jail until their trial. Trial court judges have a great deal of discretion in fixing bail. Statutory law provides few specifics about how much money should be required, and appellate courts have likewise spent little time deciding what criteria should be used. Although the 8th Amendment prohibits excessive bail, appellate courts will reduce a trial judge's bail amount only in the rare event that flagrant abuse can be proved. Bail is determined based off of the following factors: - Risk of Flight and Other Nonappearance: The judge consider's the suspect's "ties to the community" in terms of stable employment, property ownership, marital status, number of close, stable relationships, length of presence in the community, and such. Risk to Self and Others: Considers the suspect's mental condition, the seriousness of the crime(s) for which the suspect was arrested, and the arrestee's prior criminal history. - Situational Justice: the judge considers factors such as how the defendant appears, acts, responds to questions, and the like. Note that the use of situational justice might lead judges to make certain judgements about defendants based on demographic characteristics, resulting in racial, ethnic, gender, and sexual orientation disparities to manifest themselves in bail decisions. On top of all these factors, the judge is not completely certain in determining bail as the required information^ is not usually readily available- little is known about a suspect at this preliminary stage of the criminal justice process. Additionally, the history of the suspect do not contain adequate information regarding the nature of his/her prior arrests. The judge doesn't know if the person served jail time, was acquitted, dismissed, or plead. Additionally, the judge has to worry about overcrowded jails.

Failure to appear

Defendants who have gained pretrial release do not always appear in court when required. Skipping bail has several consequences. First, the bail is forfeited. Whatever money you gave to the court is now lost to it. Second, a warrant is issued for the suspect's arrest. This warrant is termed a bench warrant or a capias. A bench warrant or capias is issued by the court itself, or from the bench, for the arrest of a person; it is based not on probable cause but on the person's failure to appear in court as directed. After a bench warrant or capias is issued, the police are authorized to take the person into custody. The person must be delivered to the judge issuing the warrant and cannot be released on bail. Finally, failure to appear often subjects the defendant to a separate criminal charge of "bond jumping".

Preliminary Hearings and Defense Attorneys

Defense attorneys weigh several factors in deciding whether to demand preliminary hearing or waive it. If the district attorney's files are open and plea-bargaining policies are well-known, it is viewed as time consuming and redundant to hold a preliminary hearing. Waiving the preliminary hearing may reflect an assessment that the information to be gained from holding a preliminary hearing does not outweigh the potential damage to the defendant's case. In other words, if holding the preliminary hearing will bring negative publicity to a case, the benefits of holding the prelim hearing won't outweigh the cons- in fact, it's quite the opposite. 3rd factor is client control. Defense attorneys sometimes insist on a preliminary hearing to impress on their client the gravity of the situation. Finally, the preliminary hearing gives the defense an overview of the evidence against the client and provides the opportunity for discovery.

Preliminary Hearing Design

Designed to prevent hasty, malicious, improvident, and oppresive prosecutions, to protect the person charged from open public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based. Basically, the prosecutor and defense attorney go before a judge, and the prosecutor must convey to the judge that probable cause exists that the defendant has committed the crime.

Personal standards of justice facet of discretion that leads to case attrition

Different actors of the court room disagree about what actions should be punished. Some cases are dropped or reduced for reasons other than failure to establish guilt. Even if the evidence is strong, defendants might not be prosecuted if their conduct and background indicate that they are not a genuine threat to society. Across the nation, these reasons for rejection are referred to as "prosecution would serve no useful purpose" or "interests of justice". Often, personal standards of justice are based on a subjective assessment on the part of the prosecutor that the case is not as serious as the legal charge suggests. In most courthouses, officials refer to some cases as "cheap" or "garbage" cases. Decisions not to file charges in cheap cases reflect the effort to court officials to produce substantive justice.

Rules requiring disclosure

Discovery in federal cases are governed primarily by sections of Rules 12, 16, and 26 of the Federal Rules of Criminal Procedure (Title 18 u.s.c.). These rules provide a defendant, upon motion, rights to discovery concerning tangible objects; tape recordings; books, papers, and documents (including written or recorded statements made by the defendants or witnesses) that are relevant to the case. The defendant's prior criminal record is also available, as well as the results or reports of physical examinations, scientific tests, experiments, and forensic comparisons, and summaries of any expert testimony that the government intends to offer in its case-in-chief.

Informal Prosecutorial Disclosure

Discovery rules are vitally important to defense attorneys.

The Voluntariness Standard

English common law routinely admitted all confessions, even those produced by torture. The began to change in the mid 1700's when English courts started to examine the circumstances under which a confession was made. The rule that eventually emerged was that only confessions that were "free and voluntary" would be admitted at trial. Confessions obtained by physical coercion, such as beatings or torture, were no longer allowed into evidence because they were not trustworthy- someone in fear of a beating is likely to say what his or her antagonists want to hear. Relying on the 14th Amendment's Due Process Clause, the U.S. Supreme Court adopted this approach in Brown v. Mississippi (1936). Since then, confessions based on physical coercion have been inadmissible in U.S. Courts on due process grounds. Interrogations of "enemy combatants" under the administration of President George W. Bush were a notable departure from the trend away from physically coercive techniques. What about length interrogations? psychological ploys? and the like? In one case, a suspect was interrogated for 36 hours with virtually no break, thereby depriving him of any rest. The Court invalidated the confession as involuntary, reasoning that confessions based on psychological coercion should be rejected just as if they were based on physical coercion, because such statements were not likely to be free and voluntary. However, it is not easy to define what constitutes psychological coercion.

Celebrated cases layer of the criminal justice wedding cake

Every year, a few cases dominate media attention because of the number of persons killed, the bizarre nature of the crime, or the prominence of the defendant. Likewise, local communities may have a few celebrated cases, either because local notable has been charged with a serious crime or because the crime itself was particularly heinous. From the moment these cases begin, criminal justice officials treat them as exceptional, making sure that every last detail of the judicial process is followed. The cases are also extraordinary because they frequently involve the rarest of criminal court events- the full jury trial. These celebrated cases are most likely to be broadcast on television, with some cable stations offering instant analysis and critique. Because of the publicity surrounding them, celebrated cases have a tremendous impact on public perceptions of criminal justice. On one level, these cases reinforce the textbook notion that defendants will receive their day in court, complete with first-rate defense counsel and an attentive jury. But on another level, celebrated cases highlight the public's worst fears- the rich often get off scot-free because they can afford an expensive attorney. All too may seem to beat the rap. People assume that the court process ordinarily functions this way, but in fact it does not. Celebrated cases are atypical, they do not reflect how the courts operate on a day-to-day basis.

Exculpatory evidence

Exculpatory evidence is evidence that casts doubt on the guilt of the criminally accused person and suggests innocence. This evidence may be favorable to the defendant at trial either by tending to cast doubt on the defendant's guilt or by tending to mitigate the defendant's culpability, thereby potentially reducing the defendant's sentence.

Case Attrition

For every 100 arrests, 8 are diverted and 23 are dismissed by the prosecutor through a nolle prosequi- "no prosecution". A nolle prosequi is the ending of a criminal case because the prosecutor decides or agrees to stop prosecuting. When this happens, the case is "nollied", "nolled, or "nol. prossed".

Arrest

Formal (technical) arrest: is defined as: the taking of a person into custody for the commission an offense as the prelude to prosecuting him or her for that offense. Broader definition of arrest: Arrest means any seizure of a person significant enough that it becomes the functional equivalent of a formal arrest in that the person seized would reasonably not feel free to terminate the encounter.

Policy priorities facet of discretion that leads to case attrition

General prosecutorial policies about the priority of cases. Prosecutors devote greater resources to more serious offenses. At times, these case priorities are reflected in office structure- district attorneys around the nation have established priority prosecution programs that focus on major narcotics dealers, organized crime, sex offenders, and the like. prosecutors use informal criteria that govern allocation of scarce resources. Some U.S. Attorneys will not prosecute bank tellers who embezzle small amounts of money, get caught, and lose their jobs. The stigma of being cause and losing the job is viewed as punishment enough. Local and state prosecutors have virtually decriminalized possession of small amounts of marijuana by refusing to file charges. Based on informal office policies, district attorneys are reluctant to prosecute neighborhood squabbles and noncommercial gambling.

Grand Jury Immunity

Grand Juries have the authority to grant immunity from prosecution. The 5th Amendment protects a person from self-incrimination. Congress passed a statute that permitted the granting of transactional immunity- absolute protection against prosecution for any event or transaction about which a witness is compelled to give testimony or furnish evidence. In exchange for testimony, the prosecutor agrees not to prosecute the witness for any crimes admitted- a practice often referred to as "turning state's evidence". The Organized Crime Control Act of 1970 added a newer, more limited form of immunity- under "use immunity", a witness may not be prosecuted based on grand jury testimony he or she provides but may be prosecuted based on evidence acquired independently of that testimony. If the state acquires evidence of a crime independently of that testimony, the witness may be prosecuted. The Supreme Court held that use immunity does not violate the Fifth Amendment's prohibition against self-incrimination. Use immunity gives witnesses less protection than does transactional immunity. A witness may not refuse the government's offer of immunity, and failure to testify may result in a jail term for contempt of court.

Grand Jury

Grand juries make accusations. Trial juries decide guilt or innocence. "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." only applies to federal prosecutions. The Supreme Court held that states have the option of using either an indictment or an information (used in a preliminary hearing!). Today, grand juries in every U.S. state and D.C. can investigate criminal activity. Grand juries are impaneled (formally created) for a set period of time- typically varying between 10 days and 24 months. During that time, the jurors periodically consider the cases brought to them by the prosecutor and conduct other investigations. If a grand jury is conducting a major and complex investigation, its time may be extended by the court. The size of grand juries varies greatly, from as few as 5 to as many as 23, with an average size of 17. Grand jurors are selected randomly, in a manner similar to the selection of trial jurors.

Subpoena power of grand jury

Grand jury's investigative power to gather evidence. Subpoena power is an order from a court directing a person to appear before the court and to give testimony about a cause of action pending before it. The grand jury may issue a subpoena requiring an individual to appear before the grand jury to testify and/or bring other evidence for its consideration. Failure to comply with a subpoena (or offer of immunity) is punishable as contempt of court. A person is found in contempt faces a fine or being jailed until he or she complies with the grand jury request.

Eavesdropping and Consent Surveillance

If a conversation takes place in public where other parties can overhear the conversation, there is no reasonable expectation of privacy, because the participants exposed their conversation to the ears of others. Thus, any recording of such a conversation would not violate either the Fourth Amendment of Title III. What an employed overhears while monitoring phone conversations over extensions for legitimate business reasons and what family members overhead while eavesdropping on the conversations of their family members using an extension telephone do not implicate Title III.

Bail Agents and Bounty Hunters

If a judge grants bail, most defendants lack the financial resources to post cash or property. Indeed, about 4 out of 5 arrestees who are released on some form of financial conditions turn to the services of commercial bail agents. These are people who, for a nonrefundable fee, post a bond with the court. If the defendant does not appear for subsequent court proceedings, the bail agent is responsible for the full amount of the bond. For assuming this risk, he or she is permitted to charge a fee, usually 10 percent of the face amount of the bond. Rarely, bail agents post cash directly with the court. Instead, they purchase a surety bond from a major insurance company, which charges 30% of the bail agent's fee. For example, if a bail is $10,000, the bail agent receives $1,000 from the client and keeps $700 of it. As a condition of posting bail, bail agents require their clients to sign a contract waiving any protections against extradition and allowing the bail agent or a bounty hunter acting on behalf of the bail agent to retrieve the defendant from wherever he or she may have fled.

Hierarchy rule of the UCR/NIBRS

If two or more crimes were committed, the traditional UCR reported the most serious of the crimes. The UCR will only clock the more serious crime where more than one crime was committed. Say for example, someone shoots another person and then robs a bank. The UCR would count this as a robbery because robbery is a more serious crime than attempted murder. NIBRS on the other hand, counts all crimes and gathers data on each of the crimes, leaving out NOTHING.

Initial Appearance

In Gerstein v. Pugh, the U.S. Supreme Court held that although a police officer's "on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest, the fourth amendment requires a judicial determination of probable cause as a prerequisite to extend restraint of liberty following arrest. This means that after a person has been arrested, a law enforcement officer must take the arrested person before a magistrate for an initial appearance. The initial appearance occurs shortly after the arrest, where the suspect is brought before a judicial official who informs the person of the reason for their arrest and makes an initial determination about whether there was probable cause for the arrest. Most jurisdictions require that this be done promptly, using terms such as "immediately" or "without unnecessary delay".

Pretrial Release Services

In addition to monetary bail, all states also authorize judges to impose non-financial conditions of pretrial release. These conditions usually involved travel restrictions and one or more types of court-monitored supervision. These supervision programs monitor the arrestee's associations, place of residence, employment status, participation in drug, alcohol, or mental health programs, and access to firearms. This type of supervision is provided by pretrial release services programs. These pretrial services programs are units within court systems whose employees collect and evaluate information that judges use to determine the suitability of defendants for release from custody while criminal charges are pending. Many units also employ officers who supervise defendants whoa re granted pretrial release. These units are the primary mechanism of ensuring an arrestee's reappearance in court even in the absence of monetary bail.

Discovery in state courts

In state courts, the type of information that is discoverable varies considerably from state to state. Some jurisdictions allow only limited discovery: the trial court has the discretion to order the prosecutor to disclose the defendant's confession and other physical documents, but that is all. Other jurisdictions take a middle ground: discovery of confessions and physical evidence is a matter of right, but discovery of other items (witnesses' statements for example) is more difficult. Finally a few states have adopted liberal discovery rules: A presumption strongly in favor of prosecutorial disclosure exists, with only certain narrow exceptions.

Grand Jury vs. Preliminary Hearing

In the grand jury AND preliminary hearing, the primary function is to determine whether probable cause exists that the defendant has committed the crime at hand. With grand jury hearings, if probable cause is found, the grand jury returns an indictment/true bill/billa vera against the defendant that is signed by both the prosecutor and the foreperson of the grand jury. If probable cause is found in the preliminary hearing, the judge binds over the defendant for the trial court for adjudication by signing an information. The grand jury proceeding is held in a closed session (private and not open to the public), while the preliminary hearing is held in open court. The defendant may cross-examine witnesses in the preliminary hearing while he/she cannot in the grand jury proceeding. The grand jury has the power to investigate crimes on its own initiative, subpoena witnesses and evidence, and grant immunity. Granting immunity means that the witnesses cannot get in trouble for any self-incriminating testimony, but they are forced to testify as they cannot invoke the 5th amendments protection against self-incrimination. There is no self-incrimination with immunity. They are IMMUNE to it.

National Incident-Based Reporting System (NIBRS)

Incident-based rather than summary-based. It tracks all of the same offenses covered in the traditional UCR type I and type II categories, plus a few others, such as criminal trespass and passing bad checks. A wide variety of data is gathered about each incident, including: - The location of the crime - Whether the crime was completed or attempted (the UCR does not do this) - The type of weapon used (if any) - The type and value of property damaged or stolen - The personal characteristics of both the offender and the victim (ex. age, sex, race, marital status, socioeconomic status), etc.

Arrest warrant form of charging document

Issued by a judicial officer- usually a lower-court judge (magistrate). On rare occasions, the warrant is issued prior to arrest, but for most street crimes, the police arrest the suspect and then apply for an arrest warrant. Some states require that the prosecutor approve the request in writing before an arrest warrant can be issued.

Electronically stored information

Like traditional searches for physical evidence, searches of electronically stored information (ESI) are also governed by the Fourth Amendment. Thus, ESI searches normally require a duly authorized warrant supported by probable cause. Statutory provisions in the Stored Communications Act, however, allow law enforcement to access stored communications older than 180 days, such as e-mail and voicemail, using either a search warrant or, after giving notice to the subscriber, a subpoena.

April 8th, 2003 and John Jamelske

Manlius PD respond to "The Bottle Return" in Fayetteville regarding missing girl and possible abduction. The girl calls her older sister and tells her she is okay, but the sister thinks its suspicious so calls the police. Fayetteville Dodge. They find the suspect and black teenage girl. The suspect is taken into custody and interviewed.

Legal judgements facet of discretion that leads to case attrition

Most important reason that cases drop by the wayside after arrest and before arraignment. Prosecutors, judges, and grand jurors begin with a basic question: is there sufficient evidence to prove all of the elements (corpus delicti) of an offense? Prosecutors decline to prosecute cases based off of a lack of evidence most of the time. This lack of evidence takes many forms: lack of cooperation from victims and witnesses poses a particular problem in some urban areas.

Pretrial supervision

Most pretrial release services programs utilize a number of supervision strategies that are commonly used to supervise defendants who are convicted and sentenced to probation. This supervision includes: reporting, electronic monitoring, mandatory drug and alcohol testing, etc. These methods appear to be successful.

Property bond form of bail

Most states allow a defendant (or friends, relatives, etc.) to use a piece of property as collateral. iF the defendant fails to appear in court, the property is forfeited. Property bonds are also rare, because courts generally require that the equity in the property must be double the amount of the bond. Thus, a $10,000 bond requires equity of atleast $20,000.

Interrogations and the Fourteenth Amendment

Niether Miranda, nor any 6th amendment right to counsel cases replaced the voluntariness test. Rather, the 5th and 6th amendments work in conjunction with that due process requirement. The failure to provide miranda warnings in and of itself does not render a confession involuntary. Basically, even if the cop read the suspect his/her miranda rights, he cant then go and coerce the suspect to incriminate him/herself. The continued interrogation of an injured, depressed, and medicated suspect who was in extreme pain while being treated in a hospital intensive care unit was held to render his statements involuntary even though he had been "mirandized".

lesser felonies layer of the criminal justice wedding cake

No automatic formula dictates sorting cases into serious and not-so-serious felonies. The key is a commonsense judgement about the facts of the case. What first appears to be a serious offense might be downgraded because of the victim and the offender knew one another. For example, what starts out as an armed robbery might later be viewed as essentially a private disagreement over money owed, with the criminal act a means of seeking redress outside accepted channels.

Other crimes of the UCR

Not type I or II, but miscellaneous classes of crimes. These crimes include: - Disorderly conduct - Driving under the influence - Drug offenses - Drunkenness - Gambling - Liquor law offenses - Loitering - Prostitution - Offenses against family (ex. child neglect) - Sex offenses (other than forcible rape) - Vagrancy - Weapons offenses

Applying for Search Warrants

Once a police officer decides that a search warrant is necessary, the officer usually goes back to the stationhouse to prepare the application, affidavit, and warrant. Three alternative procedures are used. Search warrant applications are prepared by a deputy prosecutor on the basis of information provided by the officer. In the federal system, the law enforcement officer prepares all the documentation and then submits them to a prosecutor, who systematically reviews them before they are presented to the magistrate. Regardless of who actually prepares the documentation, the application must provide sufficient information to a neutral judicial officer to determine that there is a "fair probability that contraband or evidence of ac rime will be found in a particular place". This information is usually provided in an affidavit, a written statement of facts sworn to before the magistrate. Basically, an affidavit is a written statement of facts, which the signer swears under oath are true. Next, the applicant must contact a neutral judicial officer to approve the warrant based on the application and the affidavit detailing the facts that establish probable cause. This affidavit and the details included in it establish probable cause and give reason for the warrant to be approved by the judge or magistrate.

Forms of Bail

Once bail has been set, a defendant can gain pretrial release in 4 basic ways. Many lack ready cash, do not own property or lack the needed social clout.

After search warrants are executed

Once the items specified in a warrant have been found during a search and seizure, the legal justification for law enforcement officers' intrusion onto the premises comes to an end. They must therefore leave the premises in a timely manner. Before departing however, Federal rule of Criminal procedure 41 and its state-law counterparts say that proper execution of a search warrant entails several duties after the actual search is completed. Unless the warrant provides otherwise, searching officers must inventory all the property seized and leave a copy of the warrant and inventory with the occupants or on the premises if no occupant is present. After leaving the searched premises, the warrant itself, together with a copy of the inventory, must be returned to the judicial officer designated in the warrant. Courts generally hold that these post-search duties are ministerial acts. A failure to perform them will usually not result in suppression of any evidence.

Authority to issue a Search Warrant

Only judicial officers who have been specifically authorized to so may issue search warrants. Most jurisdictions give this authority to judicial officers, such as magistrates, complain justices, justices of the peace, and judges. Outright rejections of requests for search warrants are rare. A study by the National Center for State courts reported that most police officers interviewed by the researchers could not remember having a search warrant application denied.

Failure to testify

Per the 5th Amendment, a criminal defendant has an absolute right not to testify. A prosecutor may not ask a jury to draw an inference of guilt from the defendant's failure to testify in his or her own defense. However, one cannot remain completely silent. They must answer questions, but verbally invoke their 5th amendment right to remain silent and affirmatively claim it by expressly invoking the privilege at the time he or she is relying on it.

Controversy with Charging Decisions

Police departments sometimes object when prosecutors set high standards for charging because they see case rejections as an implicit criticism of the arresting officer for making a "wrong" arrest. In some jurisdictions there are consequences for prosecutorial rejecting of cases. In one jurisdiction where a DA refused to file charges in a significant number of arrests, the Fraternal Order of the Police forced the incumbent not to seek reelection.

Miranda and arrests

Police officers do not have to read Miranda rights to someone merely being arrested. Rather, Miranda rights need to be provided to a suspect who is BOTH in custody*, and interrogated*. Miranda only applies to custodial interrogations. If someone is not in custody (meaning they are talking to the police voluntarily and are free to terminate the discussion at any time), miranda warnings are not necessary.

UCR (Uniform Crime Reporting) (in depth)

Policing agencies voluntarily report summary-based measures of crime within their jurisdictions to the FBI, such as the number of murders in a year. The FBI, in turn, compiles the data and disseminates (spreads) statistics in a number of publications, the most comprehensive of which is their annual publication "Crime in the United States". More than 18,000 campus, local, tribal, county, and state law enforcement agencies (who represent 96% of the population) are active in the UCR program today.

Bail Reform

Pretrial detainees are more likely to be convicted and are less likely to have their charges reduced, and are more likely to have longer sentences than those who were released before trial. Basically, if someone couldn't pay bail and remained in preventive detention (pretrial detention), they are more likely to get further jail time upon their conviction, compared to others who have committed the same crime but are released on bail.

Risk assessment of pretrial release services programs

Pretrial release services programs seek to maximize the release of arrestees who qualify for release. This allows defendants to maintain employment and family relations and to assist their attorneys in preparing a criminal defense better than they could if they were in jail. Moreover, such programs offer the added benefit of reducing the cost to taxpayers of incarcerating people who are charged with but not convicted of any crime. In order for pretrial release services programs to be a societal benefit, they need to serve two goals: 1. reducing the failure to appear rate and 2. decreasing the risk to the community posed by defendants who are released from pretrial custody.

Searches and seizures and probable cause

Probably cause is usually necessary to conduct a search, seize evidence, or make an arrest. The U.S. Supreme Court has created several notable exceptions to this rule. The first important exception is commonly referred to as a "stop and frisk". Police are permitted to stop suspects based on reasonable suspicion of criminal activity- a lower standard of proof than probable cause. Moreover, if they have reasonable suspicion that the suspect may be armed, they may frisk the suspect for weapons. Protective sweeps of the passenger compartment of a car may be made if an officer has reasonable suspicion "that the suspect is dangerous and ... may gain immediate control of weapons". The same is true for a brief protective sweep of premises. The most notable exception to the reasonableness clause are exigent circumstances. These are circumstances that would cause a reasonable person to believe that entry (or other relevant PROMPT action) was necessary to prevent the physical harm of officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. Basically, in emergency situations, cops can barge in to prevent something.

Discovery of Exculpatory Evidence

SCOTUS held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt of punishment, irrespective of the good faith or bad faith of the prosecution." This is the brady rule. This rule is limited to admissible evidence. The prosecution has no obligation to provide to the defense potentially exculpatory information that would not be admissible in court. SCOTUS has also held that there is no requirement to turn over the results of a polygraph examination of a witness because polygraph results are inadmissible. The brady rule only applies to exculpatory evidence that is material. What is meant by "material"? exculpatory evidence is material only if there is a 'reasonable probability" that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. In order for a new trial to be ordered, the defense needs to show only a reasonable probability of a different result (not a preponderance of the evidence).

Electronic Surveillance

Searches conducted using wiretaps, bugs, or other devices to overhead conversations or obtain other kinds of information pose unique challenges for balancing privacy interests against the need for effective law enforcement in the area of electronic surveillance. On one hand, electronic listening, tracking and recording devices provide a very powerful tool for law enforcement officials in investigating and prosecuting crime. On the other hand, the potential for the abuse of individual rights can be far greater with electronic surveillance than with any ordinary search or seizure.

Interrogations and the Sixth Amendment

The 6th amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of counsel for his defense. The right to counsel per the 5th amendment is different than the right to counsel per the 6th amendment. With the 5th amendment, the right to counsel is there to prevent coercive police tactics from compelling self-incrimination. With the 6th amendment right to counsel, the right is provided to those facing criminal adversarial proceedings in court. Thus, the 6th Amendment right to counsel is triggered "attaches" when formal criminal proceedings "have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Once the 6th amendment right to counsel attached and is invoked or asserted, authorities may not engage in any conduct that is designed to elicit an incriminating response from the defendant without the presence or waiver of counsel. This means that a defendant, whether in custody or not, may not be questioned without the defendant's lawyer being present unless a valid waiver of the 6th amendment right to counsel is first obtained. This is so that no secret investigatory techniques are used. A defendant may waive his right to counsel under Miranda. a defendant may also waive his/her right to counsel under the 6th amendment.

Monetary Bail System

The Constitution does not specifically provide that all citizens have a right to bail. Rather, if bail is granted, it must not be "excessive". The Supreme Court defines "excessive" as an amount higher than reasonably calculated to ensure the defendant's presence at trial.

Discovery of Impeachment Evidence

The Supreme Court ruled that the government must disclose any prior inconsistent statements of prosecutorial witnesses so that the defense can conduct a meaningful cross-examination of such witnesses. The Jencks Act requires the prosecutor to disclose, after direct examination of a government witness and on the defendant's motion, any statement of a witness in the government's possession that relates to the subject matter of the witness's testimony. Basically, the Jencks Act requires disclosure of all prior statements of witnesses, even if the prior statements are not inconsistent with any subsequent statement by the witnesses. Congress placed the burden on the defense counsel to ask for the information (unlike the brady material, which the prosecutor is obligated to disclose even if not asked for by the defense). Congress also limited the time frame for such disclosures such that it need not take place until after the direct examination of a government witness by the prosecution. The Giglio case mandated that all impeachment evidence, even if not a prior statement by a witness, must be disclosed to the defense. Giglio mandated that the prosecution disclose any and all information that may be used to impeach the credibility of prosecution witnesses, including law enforcement officers. This information includes prior criminal records, other acts of misconduct of prosecution witnesses, promises of leniency or immunity offered to prosecution witnesses. The prosecution has an affirmative duty to investigate and disclose any exculpatory or impeachment evidence that is known by other governmental actors, such as investigating officers.

The Birth of Miranda Warnings

The Supreme Court under chief Justice Earl Warren adopted specific procedures for custodial police interrogations. The court imposed miranda warnings. Before a suspect in custody may be lawfully interrogated, the police are required to tell the subject: - You have the right to remain silent - Anything you say can and will be used against you in a court of law - you have the right to an attorney and have him or her present with you while you are being questioned - if you cannot afford an attorney, one will be appointed to represent you before any questioning, if you wish. The Court also shifted the burden of proof from the defense, which previously had to prove that a confession was not "free and voluntary", to the police and prosecutor, who now must prove that they advised the defendant of his or her constitutional rights and that he or she knowingly and voluntarily waived those rights.

Cash bond form of bail

The accused must post either the full amount of cash bail with the court or a percentage of it in the form of a cash bond. All of this money will be returned when all court appearances are satisfied. Because it requires a large amount of cash, this form of bail is seldom used. If bail is set in the amount of $10,000, most persons cannot raise that much money easily and quickly.

Bail bond

The arrestee hires a bail agent (often called a bail bondsman) who posts the amount required and charges a fee for services rendered, usually 10% of the amount of the bond.

misdemeanor layer of the criminal justice wedding cake

The bottom layer of the criminal justice wedding cake is a world unto itself- consisting of a staggering volume of misdemeanor cases, far exceeding the number of felony cases. As discussed in chapter 4, about half are "public order" offenses- disorderly conduct, public drunkenness, disturbing the peace, and the like. Only about a third involve crimes against property or persons, many of which are petty thefts or physical disagreements between "friends" or acquaintances. Rarely do these defendants have any social standing. in the eyes of the courtroom work group, few of these cases are worth much, and relatively little time is devoted to their processing. They are usually handled by a different court from the one that handles felony cases, and are processed in a strikingly different way. Dispositions are arrived at in a routine manner. Defendants are arraigned en masse, and guilt is rarely contested. Even more rarely are the punishments harsh.

Serious felonies layer of the criminal justice wedding cake

The courtroom workgroup distinguishes between this level and the next one on the basis of three main criteria: the seriousness of the crime, the criminal record of the suspect, and the relationship between the victim and the offender. The guiding question is, "how much is the case worth?". Serious cases end up in the second layer, and the "not-so-serious" ones go in the third. Murders, armed robberies, most rape cases, are treated by all members of the courtroom work group as serious felonies. This also influences the defendant's likelihood of bail, reducing it significantly,.

Charging

The criminal court process begins with the filing of a formal written accusation alleging that a specified person or persons committed a specific offense or offenses. The charging document: includes a brief description of the date and location of the offense. The charging document is an information, indictment, or complaint that states the formal criminal charge against a named defendant. All essential elements (corpus delicti) of the crime must be specified. These accusations satisfy the 6th Amendment's provision that a defendant be given information with which to prepare a defense. Applicable state and federal laws govern technical wording, procedures for making minor amendments, and similar matters.

Exclusionary Rule Continued

The exclusionary rule also applies to evidence indirectly obtained as a result of a constitutional violation- derivative evidence. Derivative evidence is derived from primary evidence obtained as a result of an illegal search or seizure. Derivative evidence is considered to be "fruit of the poisonous tree". Under this metaphor, the poisonous tree is evidence directly obtained as a result of a constitutionally violative search/seizure. The fruit is the derivative evidence obtained because of knowledge gained from the first illegal search, arrest, confrontation, or interrogation. Example: police illegally arrest someone without probable cause and then interrogate the suspect without first administering Miranda warnings. During the interrogation, the suspect confesses to a murder and tells the police the location of the body. The exclusionary rule would prevent the confession from being admitted into evidence at trial since it was obtained as a result of two constitutional violations: an illegal arrest and a 5th amendment self-incrimination violation. If the police then discovered the body where the suspect told them to look, the body and any evidence on it would also be inadmissible at trial since the police found the body as a result of their illegal interrogation of the suspect. The body itself would be considered fruit of the poisonous tree, and the poisonous tree would be the initial illegal arrest and interrogation of the individual. Basically, any evidence obtained directly from an illegal search/seizure/interrogation AND any evidence obtained BECAUSE and illegal search/seizure/interrogation occurred is inadmissible in court per the exclusionary rule.

Suppressing Evidence and the Exclusionary Rule

The exclusionary rule stems from the Miranda v. Arizona case. The exclusionary rule prohibits the prosecutor from using illegally obtained evidence during a trial. It holds that evidence obtained through violations of the constitutional rights of the criminal defendant must be excluded from the trial. under common law, the seizure of evidence by illegal means did not affect its admissibility in court. Any evidence, however obtained, was admitted as long as it satisfied other evidentiary criteria for admissibility, such as relevance and trustworthiness. This changed when the exclusionary rule was first developed in Weeks v. United States (1914). This was only limited to a prohibition on the use of evidence illegally obtained by federal law enforcement officers. It wasn't until Wolf v. Colorado did the U.S. Supreme Court take the first step toward applying the exclusionary rule to the states by ruling that the 4th Amendment was applicable to the states through the Due Process Clause of the 14th Amendment (Selective Incorporation). The exclusionary rule is commonly associated with the search and seizure of physical evidence under the Fourth Amendment. Also, the exclusionary rule is also applicable to interrogations and confessions that violate either the 5th Amendment privilege against self-incrimination or the 6th Amendment right to counsel. SCOTUS has said that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment." For example, a failure to give Miranda warnings before a suspect's confession may not trigger the exclusionary rule to other, future incriminating statements by that same suspect. The exclusionary rule also applies to the pretrial confrontations between witnesses and suspects- show-ups, photo arrays, and lineups) that were either unreliable (therefore violating due process) or that occurred in violation of the accused's 6th Amendment right to counsel. For example, if a police lineup is improperly conducted, the identification of the suspect may be excluded from evidence during trial pursuant to the exclusionary rule. Pretrial confrontations are a process by which a witness "confronts" a suspect in a lineup, a photo array, or even in person (show-up) for the purpose of attempting to identify a suspect.

Search and Seizure

The first part of the fourth amendment is referred to as the reasonableness clause. A "search" occurs under the fourth amendment when police physically intrude onto an individual's property to obtain information or discover something. A "search" also occurs "when an expectation of privacy that society is prepared to consider 'reasonable' is infringed. A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interest in that property. Thus for the protections of the Fourth Amendment to apply, there must be either some governmental trespass to property or some governmental invasion of a person's actual, subjecting expectation of privacy, and that expectation of privacy must be objectively reasonable by societal standards.

Discovery

The informal and formal exchange of information between prosecution and defense. It is a pretrial procedure in which parties to a lawsuit ask for a receive information such as testimony, records, or other evidence from each other. This evidence includes laboratory reports, statements of witnesses, defendant's confessions, and police reports, etc. The purpose of discovery is to ensure that one side doesn't have an unfair advantage over the other. The federal rules of civil procedure were adopted in 1938. Every party in a civil action is entitled to the disclosure of all relevant information in the possession of any person, unless that information is privileged.

Initial appearance and preliminary hearing

The initial appearance does not always include a probable cause hearing. If the initial appearance does not include one, a preliminary hearing is required unless: 1. The defendant is charged with a petty offense or misdemeanor. 2. The defendant waives his right to the preliminary hearing. 3. A grand jury has already determined that probable cause exists for the defendant to stand felony trial.

Release on recognizance form of bail

The judge will release a defendant from jail without monetary bail if they believe the person is not likely to flee. Such personal bonds are used most often for defendants accused of minor crimes and for those with substantial ties to the community. This type of bail requires a written promise to the court by the defendant that he/she will appear to court on the day proscribed by the judge.

Presumption against pretrial release for major drug dealers

The law creates a presumption against pretrial release for major drug dealers. The Supreme Court upheld the Bail Reform Act, and ruled that Congress enacted preventative detention not as a punishment for dangerous individuals but as a potential solution to the pressing social problem of crimes committed by persons on bail. Approximately 4-6% of all felony defendants are denied bail and held in pretrial detention.

Executing search warrants

The officer serves the warrant, conducts the search, and seizes evidence. officers mainly search private residences and impound vehicles for drugs or stolen goods. Regardless of the area or persons to be searched, a few general rules must be followed during the execution of a search warrant: 1. search warrants must be executed in a timely manner to prevent the information that established probable cause from going stale. 2. The scope of law enforcement activities during the execution of the warrant must be strictly limited to achieving the objectives that are set forth with particularity in the warrant. If officers exceed the scope of the authorized invasion under the terms of the warrant, the evidence seized will usually be deemed inadmissible. 3. Search warrants must be executed at a reasonable time of day. This normally means that warrants must be executed during the daytime, however, courts may authorize a nighttime search if the affidavit in support of the warrant sets forth specific facts showing some need to execute the warrant at night. 4. Law enforcement officers are generally required to knock-and-announce their presence, authority, and purpose before entering the premises to execute a search warrant. Courts usually require police officers to wait at least 10 to 20 seconds after announcing their presence before entering the premises. However, police do not need to knock-and-announce their presence "if circumstances present a threat of physical violence, or if there is reason to believe that evidence would likely be destroyed if advance notice were given, or if knocking and announcing would be futile. Many states allow courts to issue "no knock warrants" if such circumstances arise where advance notice would likely cause problems. Knock-and-announce rule may subject offending officers to civil damages, but will not invoke the exclusionary rule to the evidence seized. 5. courts are also concerned with the amount of time it takes law enforcement personnel to perform a search once it is initiated pursuant to a valid warrant. The police may remain on the premises only for as long as it is reasonably necessary to conduct the search. After all the objects described in a warrant have been found and seized, the authority of the warrant expires and police must leave the premises. 6. because of the 14th amendment's reasonableness requirement, officers executing a search warrant must be careful to use only a reasonable amount of force when conducting a search, such as breaking down a door. An otherwise reasonable search may be invalidated if excessive force is used.

Quality of Arrests

The police play a serious role in the criminal justice process. Police provide evidence to the prosecutor after an investigation is concluded. The evidence given to the prosecutor is how the prosector dictates whether he will file criminal charges or not. When police secure tangible evidence and cooperative witnesses for the prosecution, the prosecutor is more likely to file charges and is more likely to win a conviction. When police conduct poor or incomplete investigations, missing important witnesses or evidence, or improperly seize, mark, or store the items they do gather, prosecutors find themselves without sufficient evidence to prosecute a case successfully. This puts stress on both the police and the prosecutor.

Preliminary Hearing Nature

The preliminary hearing is a formal adversarial proceeding conducted in open court. Normally, a transcript of the proceedings is recorded. During a preliminary hearing, the state does not have to prove the defendant guilty beyond a reasonable doubt. That is for actual trial. Rather, the prosecutor needs to establish probable cause that a crime has been committed and that the defendant is the person who committed it. if the magistrate finds probable cause to believe that the defendant committed the offense, the magistrate "binds over" the defendant to the trial court for adjudication of the felony charges. If the magistrate does not find probable cause, he/she dismisses the complaint and releases the defendant. A dismissal at this stage does not invoke the constitutional safeguard against double jeopardy. The prosecution may recharge the defendant and submit new evidence at a later preliminary hearing. This dismissal also doesn't prevent the prosecution from going and obtaining an indictment from the grand jury.

Effects of the Bail System

The process of setting bail is not neutral. Defendants who have more money are much more likely to be bailed out of jail.

The Criminal Justice Wedding Cake

The wedding cake model is based on the observation that criminal justice officials handle different kinds of cases very differently. The cases in each layer have a high degree of consistency. The greatest disparities are found between cases in different layers. An examination of these layers illuminates the paradox of American criminal justice. The problem is not that our system is too lenient, or too severe, sadly, it is both.

UCR (Uniform Crime Reporting

There are two official measures of crime in the United States. The most publicized and widely used measure of crime comes from the Federal Bureau of Investigation's (FBI) Uniform Crime Reporting program.

Preventive Detention

Those who are rich enough can often buy their freedom while awaiting trial. But the poor await trial in jail. Congress amended the Bail Reform Act in 1984 to make clear that when setting bail, a judge may remand arrestees to preventive detention, effectively holding suspects without bail if they are accused of committing a dangerous or violent crime and locking them up is deemed necessary for community safety. The Bail Reform Act of 1984 allows a suspect to be held in jail without bail for up to 90 days pending trial if the judge finds clear and convincing evidence that: 1. there is a serious risk that the person will flee. 2. the person may obstruct justice or threaten, injure, or intimidate a prospective witness or juror. 3. the offense is one of violence or one punishable by life imprisonment or death.

Prosecutorial control

Through the charging decision, the prosecutor controls the doors to the courthouse. He/she can decide whether charges should be filed and what the proper charge should be. Although the law demands prosecution for "all known criminal conduct", the courts have traditionally granted prosecutors wide discretion in deciding whether to file charges. For example, no legislative or judicial standards govern which cases merit prosecution and which should be declined. Moreover, if a prosecutor refuses to file charges, no review of this decision is possible; courts have consistently refused to order a prosecutor to proceed with a case.

Video Surveillance

Title III does not cover video surveillance - the use of video cameras that record only images, not sound. Thus, surreptitious video surveillance without an audio component is analyzed under state invasion of privacy laws and under the Fourth Amendment. Legal analysis under the latter, of course, depends on whether the video surveillance violated an aggrieved person's reasonable expectation of privacy. If surveillance contains both audio and video components, then the video sections are controlled by the Fourth Amendment (and state privacy laws) and audio portions are reviews under Title III and the Fourth Amendment.

Requiring Reciprocal Disclosure

To obtain discoverable information, a party must make a timely motion before the court to show that the specific items sought are material to the preparation of the case and to demonstrate that its request is reasonable. Some jurisdictions provide for reciprocal disclosure: automatic discovery for certain types of evidence, without the necessity for motions and court orders. The defense has to disclose evidence in order to support an affirmative defense. The rules in most states mandate that the defense must disclose to the prosecution prior to trial that an insanity plea will be entered or that expert witnesses will be called.

Property Crimes of the UCR

Type I property crimes (index crimes) -Burglary -Larceny/theft -Motor vehicle theft -Arson Type II property crimes: - Embezzlement - Forgery and counterfeiting - Fraud -Stolen property offenses -Vandalism

Category 1 of the Uniform Crime Reporting program

Type I: Serious crimes of homicide, rape, arson, aggravated assault, robbery, burglary, auto theft, and larceny, according to the FBI's Uniform Crime Reports. These crimes are also called "index crime".

Category 2 of the Uniform Crime Reporting program

Type II: less serious crimes, but more numerous. Most felong crimes are nonviolent offenses involving burglary and larceny. The amount of nonviolent property crimes outnumbers violent crimes by 8x as much.

Violent crimes of the UCR

Violent crimes: Index or Type I crimes: - Murder and nonnegligent manslaughter -Forcible rape -Robbery -Aggravated assault Other crimes (type II): -Simple assault

Information form of charging document

Virtually identical in form to the complaint, except that it is signed by the prosecutor. It is required in felony prosecutions in most states that do not use the grand jury. In grand jury states, an information is used for initiating felony charges pending grand jury action. It is a formal accusation of charging someone with the commission of a crime, signed by a prosecuting attorney, which has the effect of bringing the person to trial.

Warrant exceptions

Warrantless searches "are per se unreasonable under the 4th amendment subject to only a few specifically established and well-delineated exceptions." Accordingly, warrants play a very important role in criminal procedure. It might therefore come as a surprise to many people that the majority of searches are conducted without a warrant under one of the recognized exceptions.

Rule 5 of the Federal Rules of Criminal Procedure

When the preliminary hearing is required, the magistrate judge must hold the preliminary hearing within a reasonable time, but not later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody.

John Jamelske

White Male 67 years old 5' 10" gray hair, balding hazel eyes, sometimes wears glasses. described by self and others as "cheap" despite being worth a lot of money. He inherited a bunch of land in Dewitt from his mother who died suspiciously. He was a "collector"- a pack rat, women, bulk food stores.

Evidence seized during the execution of a search warrant

this evidence must be secured in a manner that preserves the chain of custody. The chain of custody is the chronological documentation of the seizure, control, transfer, analysis, and disposition of evidence. This process involved carefully collecting and labeling the evidence seized during the execution of the search warrant and then storing the evidence in a secure place- usually the evidence repository of a police department that is accessible only to designated evidence clerks.

Title III of Omnibus Crime Control and Safe Streets Act of 1968

this legislation: 1. limits who may apply for wiretaps 2. requiring multiple levels of administrative and judicial review of wiretap applications 3. mandating that the wiretap procedures minimize the interception of communications not subject to the wiretap order 4. requiring law enforcement officers who learn information by listening to intercepted communications to keep the content of what they hear confidential 5. requiring that, immediately upon the expiration of a wiretap order, both the interception order and all recordings made pursuant to it be delivered to the judge who issued the order to be sealed. Putting material under seal means it is not accessible to anyone without a special court order. Title III applies to private searches and seizures of wire, oral, or electronic communications, not just those involving governmental actors. When its mandates are violated, Title III provides its own statutory remedies, including both criminal and civil penalties for violations of its commands. Title III also provides a statutory exclusionary rule for intercepts that were illegally obtained by either government actors or private persons to which the good-faith exception to the exclusionary rule does not apply.