CRJU202 Exam 2 PDF

Cases - Powell v. Alabama (1932): Established the defendant's right to have counsel (lawyer) in capital offenses, but did not require to have counsel appointed in noncapital state prosecutions as long as the proceedings were not fundamentally unfair. The right to council was bas...

Cases - Powell v. Alabama (1932): Established the defendant's right to have counsel (lawyer) in capital offenses, but did not require to have counsel appointed in noncapital state prosecutions as long as the proceedings were not fundamentally unfair. The right to council was based on the due process clause. - Johnson v. Zerbst (1938): All criminal defendants in federal court have the right to counsel regardless of the type of case. In Zerbst the right to council was the sixth amendment. Only applies to federal cases. - Betts v. Brady (1942): States were not required to provide indigent (poor) defendants with an attorney absent special circumstances such as those in Powell. Unless it’s a capital offense. Was decided under due process. - Gideon v. Wainwright (1963): Overruled Betts and held that indigent defendants charged with a felony in state courts must have counsel provided to them at state expense. Decided on due process. - Argersinger V. Hamlin (1972): The court held that absent a knowing and intelligent waiver no person may be imprisoned for any offense unless that person is represented by counsel. State law. - Scott v. Illinois (1979): A defendant may not be sentenced to jail unless that person was represented by an attorney or voluntarily waived their right to counsel. - The right to counsel starts at the initiation of formal adversarial proceedings. This occurs when a defendant is arrested and brought before a judge. - Gerstein v. Pugh (1975): The Fourth Amendment requires that a defendant arrested and charged by information are entitled to a timely preliminary hearing on probable cause. - Brady v. Maryland (1965): Prosecutors are not allowed to conceal exculpatory evidence. - United States v. Salerno (1987): Bail does not have to be granted and the US Supreme Court has held that bail can be denied altogether if a person is found to be a threat to public safety. Terms - Partisan election: this is a judicial election in which candidates are selected because of their political party. Ex. they are elected to be a judge bc they are a democrat or republican. - Nonpartisan election: this is a judicial election in which candidates campaign unaffiliated with any political party. - Case Attrition: the loss of cases at various stages of the judicial process. For example, cases can be dismissed for lack of evidence or if a victim does not appear in court or fails to cooperate with the prosecutor. - Attorney-Client privilege: this protects legal communication between a client and their attorney. - Indigent: A criminal offendant who can not afford an attorney - Probable cause: this is a legal concept that refers to the amount of proof a police officer must have to make an arrest or search an individual, a residence or an automobile. - Preliminary hearing: the stage in the pretrial process during which the judge determines if there is probable cause to believe that an offense was committed and that it was the defendant that committed it. If probable cause is established the defendant is bound over for trial. - Indictment: A document formally charging the defendant with a crime handed down by a grand jury after hearing the evidence presented by the prosecutor. - Missouri plan (merit selection): The merit system was first used in Missouri in 1940. This is a hybrid method of judicial selection that combines appointment and election. A commission nominates 3 people to the governor. The governor appoints one person. They after the judges initial term the judge runs in a retention election and the voters decide whether the judge should be retained or not. - Overcharging: This is when a suspect is overcharged with a crime. This is also when a prosecutor offers a plea bargain to lesser charges. - Retention election: this is an election process that is used to determine whether a judge should remain in office. - Senatorial courtesy (blue slip): A process whereby the president defers to the wishes of a senator from the state where a vacancy is located in nominating a person for a district court judgeship - For example, when there is a vacant Delaware district court judgeship, Biden defers to a Delaware senator to nominate an attorney for the job - Exculpatory evidence: evidence that shows that the defendant is not guilty. - Procedural justice: this focuses on the fairness and transparency of processes that resolve disputes like the criminal trial process. This process makes sure all are heard and decisions are made by unbiased judges. - Grand jury: a group of citizens, selected in a similar fashion like a jury, who listen to the case presented by the prosecutor and determine whether there is sufficient evidence to bind the defendant over for trial. The purpose of the grand jury is to make sure the government does not prosecute people without some proof of guilt. The grand jury serves as a check on the power of the government. - The Sixth Amendment: provides in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel to his defense” - Nolle prosequi: this is the same as nol pros. a prosecutors formal entry on the record stating that they will no longer prosecute a pending criminal charge against a defendant. - Bail agent: a person who solicits people and offers to post their bail. A bail agent, also known as a bail bondsman, is a person or business that provides bail for individuals who have been arrested and need to secure their release from jail while awaiting trial. The bail agent typically charges a fee, usually a percentage of the total bail amount, which is non-refundable. In return, the agent guarantees the court that the defendant will appear  for their scheduled court dates. If the defendant fails to appear, the bail agent may have the right to apprehend them and return them to custody. - Criminal justice funnel: This is a visual representation of how cases move through the criminal justice system. This goes from arrest, incarceration and conviction. - Preventive detention: This is the process of detaining a defendant before their trial to prevent them from committing more crimes. - Nolo contendere: (also known as no contest plea) A plea in which the defendant accepts whatever punishment the court would impose on a guilty defendant but the defendant refuses to admit guilt. This plea is frequently used by defendants who fear civil liability. An example is a car accident. If you run into someone and the cops charge you with reckless driving you would plead no contest because if you pled guilty the person could use your guilty plea when the sue you civilly for running into them. - Release on recognizance: Also known as ROR. Allows a defendant to be released from jail without posting bail. This is done when a defendant is charged with a minor crime, traffic matter - Impeachment: this is the formal process of removing judges. For federal judges it involves the impeachment in the House of Representatives and a trial in the Senate. For state judges it is done in their local governments. - Judicial Conduct Commission: These commissions are created by the State Supreme Court amd are made up of judges, attorneys and non-attorneys. They investigate complaints against judges and if they find a complaint to be meritorious they recommend discipline against the judge. The State Supreme Court disciplines the judge. - Discovery: the process by which both parties to a cse learn the evidence the opposing side will use at trial. For example the defendant can ask the prosecutor for oral statements of witnesses or photographs of the crime scene. - Pretrial services: this can be a condition of release of a defendant. They must report to a pre-trial services officer on a regular basis who monitors the defendants behavior while he is waiting for trial.  - Recusal: Recusal us required when objectively speaking the probability of actual bias on the part of the judge or decision maker is too high. - Courtroom work group: a group of people that work together in a criminal court to process cases (like the prosecutor, defense attorney and the judge). - Incumbent: this is the official (like a judge) that is currently serving as a judge and runs for re-election. - Information: A substitute for an indictment, filed directly with the court by the prosecutor. This bypasses the grand jury. Things to know - The different methods in which attorneys for indigent defendants are assigned: - Assigned council programs - Employ private attorneys to represent indigent - The predominate indigent defense service - Two types of assigned counsel programs ad hoc assigned counsel and coordinated assigned counsel - Ad hoc assigned counsel program - A judge randomly assigns attorneys who are a part of this program - The court assigns counsel - The drawback is no say in how much experience your attorney may have - The coordinated assigned counsel - Attorneys apply to be included on a list of counsel to be appointed on an as-needed, rotational basis. - Paid on an hourly basis - Several benefits - Allows the court to require attorneys to meet minimal qualifications to be part of the program - Because the courts know the experience level of the attorneys they can appoint experienced attorneys to serious cases - Contract systems  - A state or county government enters into a contract with one or more private attorneys, law firms or nonprofit organizations to provide representation to indigent defendants - This system is used when the public defender has a conflict of interest - They use a fixed-price contract program - They agree to a certain number of cases to handle for a fixed fee per case - Negative components - The incentive for the attorney to spend as little time and expense on each case as possible and the lack of oversight of the competence of the attorney - Public defender offices - A public or nonprofit institution designated to provide representation to indigent defendants in criminal cases. They employ attorneys whose job is to represent indigent defendants. They employ full-time investigators and support staff. - The ethical obligations of the defense attorney - Assuring that what is said between attorney and client is kept confidential - Meet with the defendant as soon as practical following the appointment (appointed to the case) - Explain in detail the procedures that will take place as the case progresses - Promptly respond to the client's questions or requests for information - Keep the client informed of developments in the case on a regular basis - Decisions for a defendant only - Whether to plead guilty - Whether to accept a plea agreement - Whether to waive a jury trial - Whether to testify - Whether to appeal - Tactical decisions that an attorney should make but must first consult with the client - Whether to call a specific witness to testify - Whether to cross-exam prosecution witnesses - Whether an affirmative defense like self-defense should be raised - Whether potential jurors should be challenged or removed - Whether to employ an expert witness - Whether to give an opening or closing statement - The different methods of judicial selection - Chief executive  - Federal judicial selection - Senatorial courtesy (A process whereby the president defers to the wishes of a senator from the state where a vacancy is located in nominating a person for a district court judgeship) - The US Constitution provides that federal judges are appointed for life by the president and must be confirmed by a majority vote by the senate - Lifetime appointments ensure that the judges are independent from the other branches of government and not rely upon them to maintain their judgeships - Popular election - they campaign and then people vote. Judicial elections are either partisan or nonpartisan. - Merit selection - When a judicial vacancy opens up a bipartisan (this means both democrat and republican) commission (made up of lawyers and non-lawyers) interviews and evaluates candidates for judicial positions and recommends 3 people to the governor. The governor then appoints 1 person to the job. - Appointment by legislator - State judicial selection - State judges are appointed by the legislature - appointment by the governor and confirmed by the legislature. - The goals that different methods of judicial selection are intended to produce - Independence - An independent judiciary one that is free to make decisions without interference from the other branches of government or concern for the popularity or the political consequences - ensures that judges are free to decide cases fairly and impartially based on the facts and the law without consideration of public, political, financial or other outside pressure. - Accountability  - Judicial accountability involves the ability of society or the government to observe the performance of judges and remove from office those who are performing below acceptable standards - Involves the ability of an entity to remove or discipline judges who do not perform their jobs in an acceptable manner. a. Decisional accountability: holds judges responsible for their rulings. b. Behavioral accountability: judges are responsible for their conduct on the bench. - Expertise - the merit selection process makes sure judges have the experience needed to become a judge. - Diversity - no one system of judicial selection has been found to produce a greater portion of minority or female judges. - Roles, duties, and training judges - Roles: Hold hearings, trials, administer the courts docket and calendar. - Duties: most attorneys specialize in one area of law. Judges handle cases in many areas of law. It is up to the judge to become familiar with the law as well as the accepted procedures of the court. The judges learn from senior judges. - Training: the judge learns on the job how to perform the fundamentals of the job. Some states have formal training like educational programs. Some states send judges to the National Judicial College in Reno, Nevada. Judges also learn from senior judges. - The prosecutor's discretionary powers - The police determine who should be arrested but the prosecutor decides whether to file formal charges against a suspect and if so, what those charges should be. A prosecutor can: 1. Dismiss the charges- if they believe the person is not guilty or if they believe there is not enough evidence to convict. 2. Nol pros- a prosecutors formal entry on the record stating that they will no longer prosecute a pending criminal charge against a defendant.  3. Reduce charges- prosecutors may not overcharge a suspect. If they think the suspect has been - Factors that influence a prosecutor's decision to charge a defendant with a crime - Legal sufficiency: under this system a prosecutor accepts all cases in which the legal elements of the crime are present. Prosecutors do not screen out cases where the evidence is weak. - Trial sufficiency: under this system the prosecutor evaluates cases in terms of the likelihood of a conviction at trial. They file charges only if the odds of conviction at trial are good. - System efficiency: prosecutors screen cases as a way of decreasing office workload. For example they send cases to diversion programs or offer plea bargains. - Defendant rehabilitation: under this system prosecutors believe that those defendants without a criminal record and who face minor nonviolent crimes should not be prosecuted through the criminal justice system. - The stages of the criminal process and what happens at each stage 1. Arrest–arrest is made and then officer files a complaint which serves as the charging document. In order for officer to make an arrest he must have probable cause. 2. Initial appearance-after a suspect is arrested, booked and charged he must be brought before a lower court judge for an initial appearance. They just be brought before the judge without “unnecessary delay.” The charges are read and penalties are explained. Defendant is told about his right to a trial by jury and right to counsel. If indigent attorney provided. Bail is set. 3. Prosecutorial Screening-the prosecutor decides whether the case should move forward or whether the charges should be reduced. 4. Formal screening--this is a series of decisions made by prosecutors to determine whether to pursue a case.  5. Arraignment–After it has been decided by a grand jury or at the defendants first appearance that there is sufficient evidence to proceed with the case, the defendant is arranged. The purpose of the arraignment is to formally notify the defendant of the charge and the defendant enters a plea of guilty or not guilty. 6. Trial -the prosecution presents their case and the defendant can cross examine the prosecutors witnesses. The defendant does not have to present any evidence. 7. Sentencing-the judge decides the sentence. 8. Appeals–all defendants have a right to appeal. - Criteria for setting bail - If a judge thinks a person poses a significant risk of flight or harm to others bail will not be granted. If a defendants appearance at trial is not a concern and the defendant is not seen as dangerous, the defendant may be released on his own recognizance or be required to post bail. - Understand recent bail reform efforts - Critics of the bail system and concerns about the transmission of COVID among inmates in overcrowded jails led jurisdictions in the US to implement reforms designed to reduce the number of individuals detained in jail prior to trial. NY, NJ and CA eliminated bail all together for certain categories of crimes. - Compare and contrast grand jury and preliminary hearing - Grand jury-a group of citizens, selected in a similar fashion like a jury, who listen to the case presented by the prosecutor and determine whether there is sufficient evidence to bind the defendant over for trial. The purpose of the grand jury is to make sure the government does not prosecute people without some proof of guilt. The grand jury serves as a check on the power of the government. - Preliminary hearing: the stage in the pretrial process during which the judge determines if there is probable cause to believe that an offense was committed and that it was the defendant that committed it. If probable cause is established the defendant is bound over for trial. - HOW THEY DIFFER - Both a grand jury and preliminary hearing are used to determine whether there is enough evidence to charge someone with a crime. A preliminary hearing is an adversarial process in which the prosecutor presents the case and the defense attorney can cross examine the witnesses. The grand jury is a one-sided process where the defense is not present and the grand jury only hears what the prosecutor presents.