Courts and Criminal Procedures Final Exam

Evaluate the impact of differences in jury size and unanimity requirements.

**Common law juries have consisted of 12 people since the 14th century. -The Supreme Court, however, authorized smaller juries in noncapital cases, but juries with less than 6 members are not permitted in criminal cases. -Since that ruling, many states have specifically authorized juries of fewer than 12 jurors, but most allow these smaller juries only in misdemeanor cases. -Some studies have found very few differences between 6- and 12-person juries, while others have reported significant differences.

Is there a right to reciprocal discovery?

**Generally no right of reciprocal discovery - Some jurisdictions allow for it (Not Texas) i. Generally violates right to self-incrimination 1. Exception - alibi defense 2. Identity of expert witnesses **All the cards are on the table to fair dealing can take place and cases get moved!

Jencks v. United States (1957)

- Prosecutor's must disclose prior inconsistent statements of a prosecutorial witness so that defense can conduct a meaningful cross-examination of such witnesses.

Kyles v. Whitley (1995)

- Prosecutors are responsible for ensuring that police communicate relevant evidence to the prosecutor's office

Testimonial Evidence

- Statements from a witness under oath and on the witness stand as to what the heard, saw, did or say.

Jury Nullification

- When jury does not follow the jury instructions and renders a verdict on other factors or emotion

Giglio v. United States (1972)

- all impeachment evidence must be disclosed to defense 1. Bias, etc. - Deal given to accomplice or any motive to testify a certain way. 2. Other acts of misconduct of prosecution witnesses

Indicate how the U.S. Supreme Court has narrowed the list of death-eligible cases and offenders.

- by striking down death penalty provisions for most crimes, such as rape—even of a child— and upholding capital punishment only in homicide cases thus far -treason remains an open question - also narrowed the list of death-eligible offenders by declaring that developmental issues, such as age less than 18 years at the time of the crime or intellectual disabilities, preclude execution.

Versus Jencks Act

- law that states after a witnesses testifies, upon motion of the defense, prosecutor must turn over any witness statements in possession

List at least three major issues related to imprisonment as a sentence in the United States.

- prison overcrowding, which limits how many guilty defendants may be sentenced to prison - conditions of confinement lawsuits, which impact living conditions in prisons -the high costs of incarcerating prisoners

Scientific Evidence

- testimony concerning the formal results of forensic investigatory and science techniques. Specialized education, training, experience Medical Examiner (Autopsy Report) Lab Drug Scientist (Drug Lab Report) DNA Lab Scientist (DNA Lab Report)

Discuss the three major factors influencing bargaining and discretion.

- the presumption of factual guilt - the costs and risks of trial to all parties - the question of what sentence to impose upon the guilty

Hung Jury (Mistrial)

- when not unanimous = Mistrial *Texas requires unanimity statutorily!! -A mistrial occurs when a unanimous verdict cannot be reached

Incapacitation

-"Lock them up and throw away the key" -Different from Retribution *Future oriented *Focuses on personal characteristic of the offender -No intention of reforming -Repeat and very serious first-time offenders *Multiple DWI offenses *Capital murder *Continuous sexual assault of children

Notice of Appeal

a formal notice requesting an appeals court to review the case -Initiates appellate process -Versus writ of certiorari or petition for discretionary review

A written opinion in a Supreme Court case is a

a statement of the legal reasoning behind the decision. -(Published and Unpublished) -Per curium, Dissenting, Concurring, and Plurality

Running counts concurrent

convicted of multiple counts/ offenses, but sentence is served at the same time Result: *same label *sentence relief

Venire

A group of citizens from which members of the jury are chosen.

Demonstrative Evidence

Any object, visual aid, model, scale drawing, or other exhibit designed to help clarify points in the trial. - E.g., props, re-enactments, charts, maps, summaries. **Serves as visual or auditory benefit

Brady v. Maryland (1963)

-"the suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilty or punishment, irrespective of the good faith or bad faith of the prosecution." (Brady Rule) i. Limited to admissible evidence ii. Exculpatory evidence. -- Known favorable and material evidence that may cast doubt on the defendant's guilt. *A reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. 1. DNA, etc. iii. Impeachment evidence - Evidence that casts doubt on the credibility of a witness 1. Criminal history record information

Right to Jury Trial in the States

-14th Amendment, Section 1 - incorporated such right to the states. (1868) **Duncan v. Louisiana (1968) -Article I, Section 15, Texas Constitution - "The right of trial by jury shall remain inviolate."

Explain why adherents of the crime control model of criminal justice oppose plea bargaining for different reasons from those of adherents of the due process model of criminal justice.

-Adherents of the crime control model of criminal justice oppose plea bargaining because they believe defendants get off too lightly. - On the other hand, adherents of the due process model of criminal justice oppose plea bargaining because they believe that innocent defendants might be forced to plead guilty to a crime they did not commit.

Disposition in a supreme court case

-Affirm -Reverse -Reverse and Remanded -Remanded

Identify the types of evidence subject to mandatory criminal discovery.

-All potentially exculpatory evidence must be disclosed to the defense. -This includes any prior inconsistent statements of prosecutorial witnesses, as well as all impeachment evidence that might cast doubt on a witness's credibility.

Explain how double jeopardy limits appeals by the prosecution in criminal cases.

-Although the prosecution can file an appeal over a question of law, the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prevents the prosecution from seeking to have a "not guilty" verdict overturned on appeal.

Describe the six customary phases in the appeals process.

-Appeals are started by the appellant's filing a notice of appeal. -The parties then designate the record on appeal and the trial court transmits the designated materials to an appellate court. -The parties then brief their cases. - The appeals court may then opt to hear oral arguments. -The decision of the appellate court is memorialized in a written opinion that concludes with an order disposing of the case.

Analyze the effect of the exclusionary rule on the operations of the courtroom work group.

-Because pretrial motions to suppress evidence are relatively rare, the exclusionary rule does not generally impact the operations of the courtroom work group in most cases. -However, when questions about the constitutionality of a search or seizure arise, the defense attorney takes charge of the situation by filing a motion to suppress. - In somewhat of a role reversal, these motions have the effect of putting the prosecution on the defensive. -Moreover, they ultimately cause a judge to have to rule on the credibility of testimony offered by law enforcement officers. - Depending on whom the judge believes, the relationships within the courtroom work group can be significantly strained.

Summarize how the decision in Miranda v. Arizona regulates the process of police interrogations of suspects.

-Before a suspect in police custody is interro- gated, the suspect must be informed of his or her rights under the Fifth Amendment's Self-Incrim- ination Clause, namely that the suspect has the right to remain silent and the right to have coun- sel present during an interrogation. - Moreover, the suspect must be told that the consequence of voluntarily waving these rights will result in the prosecution being able to use anything the suspect says at trial. -If the suspect invokes his or her Miranda rights, questioning must stop.

Preparation of the Appellate Court Record

-Court Record (Filed Papers and Evidence) -Reporter's Record (Transcripts of Witnesses) -Appellate Briefs (Oral Argument)

Trial Jury Members ("Petit Jury")

-Cross-section of the local community -Represent fair-minded citizens -Judge the facts (as opposed to the law)

Success of defendants in an appeals case

-Most defendants lose appeals because they lack substantial merit. -Most appellate decisions are highly differential to the trial court rulings -The harmless error doctrine prevents reversals *Defendants win less than 10% of the time *But even then, there may only be a slight modification *Or if the case is reversed and remanded, the error is likely to be corrected a second time around on retrial.

Explain the reasons why the process of discovery exists in both civil and criminal cases, but is significantly curtailed in the latter.

-Discovery is designed to give both parties to a legal dispute a good idea about the evidence that will be presented at trial. - Not only does this exchange of information prevent surprises, but also it facilitates resolutions without trial, such as the settlement of a civil case or a plea bargain in a criminal case. -Discovery, however, is limited in criminal cases, since the prosecution bears the burden of persuasion to prove a defendant guilty beyond a reasonable doubt, and the defendant is protected against being forced to incriminate himself/herself. - If the defense had to disclose evidence to the prosecution, the privilege against self-incrimination would be rendered meaning- less.

Initial Instructions to Jury

-Do not talk about case even to family members -Do not listen or read media accounts -Defendant enjoys presumption of innocence and presumption of sanity -Prosecution has burden of proof *Burden of persuasion to prove case beyond a reasonable doubt *Burden of production to produce admissible evidence

Retribution

-Focuses on past behavior of criminal -Evolves from revenge mentality -Dominant philosophy from biblical times to 18th Century -Transformed into Proportionality - Punishment should fit the crime 1. Offender justly deserves to be punished for having wronged another person 2. Society has right to punish and obligation to punish proportionately Limitations: -focuses on crimes of violence, it offers little guidance for property crimes -Does not take into account reasons for human behavior -Emphasizes past behavior without concern for future behavior -Does not necessarily reduce crime ex: Confinement Community Service Hours Fine

Differentiate formal and informal discovery and the reasons why both are used in criminal cases.

-Formal discovery in criminal cases concerns the exchange of information mandated either by the rules of procedure or applicable law. -The crux of mandatory discovery in criminal cases concerns prosecutorial disclosure of exculpatory evidence to the defense. -Informal discovery concerns the disclosure of information not mandated by law. -It occurs frequently because it often facilitates a prompt resolution of a dispute without the need for trial (i.e., either the prosecutor drops the charges in light of exculpatory evidence disclosed to it by the defense, or the defendant pleads guilty once the strength of the prosecution's case becomes evident)

Processing a Plea Bargain

-Formalized process on the record -Written Agreement -Signed and Acknowledge by Judge, Defense -Attorney and Prosecutor -Boykin v. Alabama Admonishments: -Knowingly, intelligently and voluntarily made -Defendant did actually commit the crime -Defendant is mentally competent to waive constitutional rights -Trial by jury -Confront and examine witnesses -Compel attendance of witnesses -Right to testify on own behalf -Right against self-incrimination -Right to be presumed innocent -Right to appeal

Types of Pleas?

-Guilty -No Contest or Nolo Contendere *Protects against civil liability -Alford Plea (Not seen much if at all in Texas) -- Defendant pleas guilty without admitting guilt

Analyze how state courts of last resort and the U.S. Supreme Court exercise their discretion to set justice policy

-High courts of last resort help to set justice policy through their exercise of their discretionary appellate jurisdiction. -They accept only cases that present significant public policy questions while rejecting petitions that merely allege the need for error correction.

Recognize the importance of Boykin v. Alabama.

-In Boykin, the Court held that a plea of guilty was more than an admission of guilt and also involved the waiver of important constitutional rights. - As a result, a defendant must knowingly waive his or her constitutional rights before a plea of guilty is accepted.

Main job of the prosecutor

-It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. -They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused

Discuss the function of jury consultants in the process of scientific jury selection.

-Jury consultants use social scientific research methods to profile jurors in an attempt to help attorneys select members of the venire for petit jury service who are likely to be predisposed to their side of the case.

What is Exculpatory evidence?

-Known favorable and material evidence that may cast doubt on the defendant's guilt. -A reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. ex:DNA

Differentiate between mandatory and discretionary appellate jurisdiction.

-Mandatory appellate jurisdiction concerns the cases that an appeals court must hear. -Discretionary appellate jurisdiction concerns the cases that an appeals court may elect to hear, but is not required to adjudicate.

Eligibility and Disqualifications to Serve on Jury

-Must be U.S. Citizen -Resident of the locality (county) -18 years old -Understand, read and write the English language -Mentally competent -Cannot be convicted of misdemeanor theft or felony -Cannot be under indictment for theft or felony -Cannot have sat on grand jury -Cannot be a witness in the case -No bias in favor or against defendant (pretrial publicity, looks, defense attorney, etc.)

Summarize the basic rules of evidence concerning trustworthiness and relevance of evidence.

-Only relevant evidence is admitted at trial— evidence that tends to prove or disprove a fact in dispute. - Relevance, however, is not enough. -Evidence must also be reliable. -Thus, hearsay arguments. -The judge instructs the jury with regard to the applicable law and then the jury deliberates until it reaches a verdict.

Compare and contrast plain error, reversible error, and harmless error.

-Plain errors are severe defects in trial proceed- ings that require reversal of a conviction and remand for a new trial in order to avoid a mis- carriage of justice. - All other errors are subject to the harmless error rule. - If the mistakes are minor such that they probably did not affect the outcome of the case, they are deemed "harm- less" and, therefore, do not provide grounds for the reversal of a conviction on appeal. - In contrast, if the errors likely contributed to a defendant being convicted, then they are deemed prejudicial and, therefore, require that a convic- tion be reversed.

Identify the major exceptions to the Fourth Amendment's warrant requirement.

-Police may conduct warrantless searches when granted consent to search by someone with actual or apparent authority to grant such consent; - when incident to a lawful arrest -when items are in plain view or in open fields -when probable cause exists to search a motor vehicle -or when emergency situations make it impracticable for police to seek and obtain a warrant first.

Explain how a jury is summoned and selected, including the constitutional limitations on these processes.

-Potential jurors are summoned to court using master jury lists. -The people who are summoned, called the "venire," come to court to participate in voir dire, a process designed to select a fair and impartial petit jury by asking members of the venire about potential biases concerning the case. - Those who cannot serve as fair and impartial jurors are excused for cause. -A few other members of the venire may be excused by either party using peremptory challenges so long as these challenges are not used in a discriminatory manner that violates the constitutional guarantee of equal protection

Describe the effects and implications of pretrial publicity and the solutions that courts use to prevent those effects from influencing a criminal trial.

-Pretrial publicity can taint the potential jury pool by exposing them to information that is inac- curate or inadmissible as evidence. - When that occurs, the defendant may be deprived of his or her Sixth Amendment right to a fair and impartial jury. -To reduce the chances of the media tainting potential jurors, judges may issue limited gag orders forbidding those involved in the case—police, prosecutor, defense attorney, and defendant—from talking to the press. - But even still, venire members may have heard media reports that could have influenced their views on a case. -The voir dire process is supposed to screen out potential jurors who have already been tainted. - In high-profile cases, a change of venue might be necessary to find a pool of potential jurors who could render a fair and impartial verdict, free from the taint of pretrial publicity. -During a trial, however, courts routinely instruct jurors not to read newspapers, magazines, or watch television news shows that may report on the trial. -Sometimes, to shield jurors from such media influence, the jury may be sequestered.

Purpose of a jury trial?

-Prevent oppression by the government -Provide accused a safeguard from overzealous prosecutor and against the compliant, biased, or eccentric judge

Key Developments in Jury Trial Law

-Privilege against self-incrimination - prosecutor cannot comment on defendant's failure to testify -Pretrial publicity taints fairness and impartiality **Federal juries must be 12; State juries do not Texas has in district court -Federal juries must be unanimous; State do not **Texas is! -Juries must be 6-member -6-member juries must be unanimous -Not allowed to strike jurors on basis of race or sex *Batson v. Kentucky *J.E.B. Petitioner v. Alabama

List the major reason each of the members of the courtroom work group engages in plea bargaining.

-Prosecutors engage in plea bargaining because they want to gain convictions and reduce risk of mistrial or acquittal -defense attorneys seek leniency for their clients and prevent business costs -judges feel pressures to move cases

Identify the different appellate standards of review and evaluate their impact on the criminal appeals.

-Questions of law are reviewed de novo, ques- tions of fact are reviewed for clear error, and dis- cretionary rulings by judges are reviewed for an abuse of discretion. - The de novo standard allows an appellate court to consider any legal question without regard or deference to the decision made by a lower court. -The other standards of review require appellate courts to give deference to the decisions of a trial court.

Restoration

-Seeks to replace Rehabilitation with Restoration -Crime is primarily a conflict between individuals, singularly and the community at large -The principal aim should be to repair those injuries -Thus the criminal justice system should facilitate involvement of victims, offenders and the community in sentencing decisions instead of police, prosecutors and probation officers

Compare and contrast appeals and postconviction review processes.

-So long as criminal defendants file a notice of appeal within the specified time limits, they are guaranteed the right to have an appellate court directly examine their convictions for all types of alleged errors. -Postconviction reviews, however, collaterally attack convictions in civil court. -The grounds for such postconviction reviews are usually much narrower than the grounds that can form the basis of a direct appeals

Evaluate whether the exclusionary rule should be abolished.

-Supporters of the exclusionary rule argue that the rule is the only effective deterrent against police misconduct. -Thus, they assert that the rule must be preserved in order to guarantee that our constitutional rights are honored. - In contrast, those who want to see the exclusionary rule abolished argue that the threat of civil lawsuits should be enough to deter police misconduct. -Moreover, they assert that the rule "costs" too much, in that it operates to prevent juries from considering highly relevant evidence, which, in turn, sometimes operates to allow the guilty to go free.

Discuss the major differences between the due process model of criminal justice and the crime control model of justice with regard to the death penalty.

-The due process model of criminal justice believes the death penalty should be abolished because it is morally wrong for the state to take a life, the death penalty is not a deterrent to crime, and the death penalty is unfairly administered. vs. - The crime control model of criminal justice believes that the death penalty should be retained because it is morally acceptable to take the life of a person who has already taken another person's life, the death penalty is a deterrent, and issues of fairness are either unimportant or unproven.

Compare and contrast the exclusionary rule and the fruit of the poisonous tree doctrine.

-The exclusionary rule bars evidence from being used in the prosecution's case-in-chief if it was obtained in violation of a defendant's consti- tutional rights. VS. - The fruit of the poisonous tree doctrine bars derivative evidence found as a result the violation of a defendant's constitutional right from being used in the prosecution's case-in-chief unless the evidence is so far attenuated from the constitutional violation that its use would not offend due process.

Rehabilitation

-The idea that helps offenders assume a constructive place in society through vocational, educational, or therapeutic treatment -Assumes criminal behavior is the result of social or psychological disorders, and that the treatment of such disorders is the primary goal Ex: Probation Pretrial Diversion

Describe how the three branches of government are involved in sentencing.

-The legislative branch of government defines the range of possible punishment for a given crime. - The judicial branch of government has discretion in choosing the specific sentence for the individual criminal. -The executive branch of government is responsible for carrying out the actual sentence, including running prisons, pardons, and parole.

Identify the major alternatives to institutional incarceration.

-The major alternatives to imprisonment include probation, which is often used in felonies; *fines, which are rarely used in felonies *restitution, which is increasingly imposed after a misdemeanor and or felony conviction *intermediate sanctions, such as community service, house arrest, intensive-supervision probation, boot camp, and electronic monitoring.

Analyze the scope of the right to a trial by jury in a criminal case.

-The right to a trial by jury applies to all nonpetty criminal offenses, usually interpreted as offenses punishable by a term of imprisonment of six months or more. -The right may be waived by a defendant, who may opt for a bench trial in lieu of a jury trial. A fundamental Constitutional right: -Article III, Section 2 - "the trial of all crimes, except cases of impeachment shall be by jury and such trial shall be held in the state where the said crime shall have been committed." -6th Amendment - "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." -7th Amendment - "In suits a common law . . . The right to a jury trial shall be preserved." **However, trials are rare events

Trace the history of trials by jury.

-The right to a trial by jury can be traced to the Magna Carta in 1215. -This right was incorporated into Article III, Section 2, of the U.S. Constitution with respect to the federal government, and in the Sixth Amendment, with respect to the states. *influenced colonial founders

Distinguish between the presumptions that apply at the start of trials and the burdens of proof applicable to overcoming them.

-The two presumptions that apply to every criminal trial are the presumption of innocence and the presumption of sanity. - It is the responsibility of the prosecution to introduce sufficient evidence over the course of a trial to overcome or rebut the presumption of innocence by proving a defendant's guilt beyond a reasonable doubt. - In insanity defense cases, the defense usually must prove that the defendant was insane at the time of the commission of a crime by clear and convincing evidence.

Explain how appeals and appellate processes differ from trials and trial processes.

-Unlike trial courts, appeals courts do not hear evidence at trials. -Thus, witnesses do not provide testimony at appeals. -Rather, lawyers for both sides appear before a panel of judges to argue about the law applicable to the case.

Deterrence

-Warning to Others - Seeks to prevent other potential offenders *Discourage crime by making it painful -Sanctions should be used to further society's goal of preventing crime, not mere retribution -Punishment should fit the criminal Two Types: -General -Specific Ex: -Severe sentences for particular crimes -Public humiliation -Billboards -Sex Offender Registration

Explain the requirements governing the application for search warrants, the issuance of search warrants, and the execution of search warrants.

-When law enforcement officers want to conduct a search for evidence, the Fourth Amendment generally requires them to seek a warrant. -They apply for a warrant by swearing to the facts they know, usually in an affidavit. -A magistrate then considers those facts to determine whether there is probable cause to authorize the search of a particular place or person for particular evidence connected to a specific crime. -If such a warrant is issued, the police must execute the warrant quickly and in a reasonable manner.

Define the contemporaneous objection rule and explain its impact on appeals.

-When lawyers think an error is being made at trial, they must object in order to give the trial court judge the opportunity to correct the error. -If the attorneys fail to object, then their objection is deemed waived and, therefore, cannot form the basis of a legal argument on appeal.

Identify the leading causes of wrongful convictions.

-mistaken identifications -improper forensic evidence -false confessions -unreliable informants -tunnel vision -misconduct by justice professionals -inadequate defense representation.

Who Should Decide the Sentence?

1. Legislative Sentencing Responsibilities -Legislatures create the sentencing options In statute/code Texas Penal Code May be "Determinate" or "Indeterminate" Determinate ("Fixed Sentences") Attempt to fix different sentences for similar offenses Indeterminate (Discretionary ranges) 2-20 years or probation 5-99 years or life or probation **THEY SET UP THE STURCUTURE 2. Judicial Sentencing Responsibilities -In most jurisdictions and in Federal Court, judge chooses sentencing option -Not in Texas ** JUDGE HAS TO FOLLOW SENTENCING GUIDELINES (TX HAS WIDE DISCRETION) 3. Executive Sentencing Responsibilities -Sentences are carried out by officials in executive branch *Texas Department of Criminal Justice -Eligibility for Parole and Good Time Credit *Parole Boards -Governor Pardons **2/3 of folks release from prison rearrested with 3 years **AFTER EFFECT EX:PAROLE *prosecutors generally don't have a right to appeal

Exceptions to suppression of derivative evidence

1. When police act on good faith upon a warrant reasonably believed to be valid 2. Independent source outside of police conduct 3. Attenuated - the derivative evidence is sufficiently far removed from the constitutional violation 4. Inevitable discovery - the evidence would have been discovered eventually anyway through lawful mean

Search Warrant Characteristics

1. Written document 2. Signed by a judge or magistrate 3. Authorizing law enforcement to conduct a search and seize evidence 4. Made by application by peace officer (Affidavit) 5. Neutral and detached magistrate Execution of Search Warrant 1. Timely manner to prevent probable cause from going stale 2. Must stay within scope of warrant - if not contemplated by warrant, the evidence will be suppressed 3. Executed at reasonable time of day, unless specific facts dictate otherwise 4. Knock and announce (10-20 seconds), unless circumstances present a threat of physical violence or evidence destruction 5. Remain only as long as necessary 6. Inventory items seized 7. Leave a copy of the warrant and inventory with the occupants or on the premises 8. Return inventory and warrant to judicial officer

Distinguish between the three most common types of plea agreements.

1. charge bargaining- the defendant pleads guilty to a less serious charge than the one originally specified. Ex: Different offense/ Lesser Penalty - Different Offense/ Same penalty - Different Offense/ Harsher penalty 2. count bargaining- the defendant pleads guilty to a few of the charges in the indictment or bill or information. 3. sentence bargaining- the defendant pleads guilty in anticipation of leniency in sentencing. Two types: -Plea on the Nose: A plea of guilty entered in exchange for a promise of leniency in sentencing. -"Straight-Up Plea" : Defendant enters a plea of "guilty" without an agreement *Fall on the sword and hope for the best *Best used on a jury

Distinguish between the five major sentencing philosophies.

1. retribution- which seeks to punish wrongdoers 2. incapacitation- which is aimed at removing offenders from the community 3. deterrence, whose goal is to prevent the commission of future crimes 4.rehabilitation- which emphasizes restoring the offender to a constructive place in society 5. restoration- which attempts to promote the victim's healing

How many strikes does a prosecutor get w/out having a cause?

10 in felonies 5 in misdemeanor

How many courts of appeals are there in Texas?

14

Indicate why a few cases go to trial but most defendants plead guilty

Defendants and their lawyers will opt for a trial if they think the case factually presents a reasonable doubt or if the prison sentence will be high.

What is Impeachment evidence?

Evidence that casts doubt on the credibility of a witness Ex: Criminal history record information

Summarize the two U.S. Supreme Court rulings from the 1970s on capital punishment that led to the bifurcated process for death penalty sentencing.

Furman v. Georgia (1972): the Court declared that most U.S. death penalty laws were uncon- stitutional because of their arbitrary nature. vs. -Gregg v. Georgia (1976): the Court upheld death penalty laws that specified aggravating and miti- gating circumstances for when the death penalty may be applied and also provided for separate phases of the trial, one to determine guilt and the other to decide on the penalty.

voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge. * French legal phrase meaning "to speak the truth."

Analyze the reasons why most criminal appeals result in convictions being affirmed.

Most criminal cases are affirmed on appeal because of the harmless error rule and the stan- dards of review applied by appellate courts.

Privileged item's excluded

Prosecutor notes and trial strategy

Jury Selection Process

Selection occurs in 3 basis stages: -Compiling the Master Jury List *Names come from voter registration list (This *Election - High 1st Time Turnout) *Who may get left out then? -Summoning the Venire (Getting the Folks to Court) *Random selection of a couple hundred folks by Court Clerk *Mails the summons out - A legal order to respond Ex: Arrest, contempt, jail (Rare) -Conducting Voir Dire (Jury Selection)

Basis for Deterrence Effectiveness

Severity - The more severe, the less an actor will engage Certainty - The more likely actor will be caught and punished, the less and actor will engage Celerity - Swiftness will deter Only applies to those thinking rationally

What is a plea bargain?

The process through which a defendant pleads guilty to a criminal charge with the expectation of receiving some consideration from the state (prosecutor). Three Factors Influencing Plea Bargaining: -Presumption of Factual Guilt -The Costs and Risks of Trial to All Parties -What Sentence to Impose *between 85% and 95% of all cases are disposed

Describe the two primary functions of appeals.

The two primary functions of appeals are error correction and policy formation.

The Goal of Jury Pick'n

To ensure 12 folks can fairly impartially decide "guilty" or "not guilty" under the law based on the evidence.

Can a Jury be Waived?

Yes -Bench Trial -Plea Bargain

What is the chain of custody?

documentation or paper trail showing custody, control, transfer and analysis of everyone who comes in contact with the specimens -process involves 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.

circumstantial evidence

evidence based on suggestion rather than personal knowledge or observation - E.g., John's fingerprints on gun that ballistics shows was used to shoot Sally by examining bullet retrieved from Sally's brain and gun.

Direct Evidence

evidence that (if true) proves an alleged fact, such as an eyewitness account of a crime

Error Correction

protects against arbitrary, capricious or mistaken legal decisions by trial judge

Real/Physical Evidence

relevant and material to the case (actual weapon used, contract, ingerprint...) - E.g., gun, knife, billing statements. The Exhibits

Policy Formation

shape law in response to changing conditions in society -Fill in gaps in existing law -Clarify old doctrines -Extend existing precedent to new situations -Rarely overruling prior decisions

What is onbonk?

signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one 3/4 judge panel

What is a Discovery ?

the informal and formal exchange of information between prosecution and defense. -There is no general Constitutional right to discovery Why? -Concern that too much disclosure may allow defendant to take advantage by tampering with witnesses or witness intimidating or destruction of evidence

who has the right to appeal?

the loosing party -Except, Prosecutors may not file an appeal of an acquittal -Doing so would violate the Fifth Amendment protection against double jeopardy -Unless, it is an error on a decision of law (Typically Interlocutory) -Judge rules against prosecution on Defendant's Motion to Suppress Evidence