EXAM 2

Historical context

17th century

- Americans used the English system of private prosecution of criminal cases

- Attorney General per conoly, which served as counsel to the government and left the prosecution of crimes to the individuals

- was not efficacious; colonists began to prosecute offenders

- colonies grew; deputies were appointed to each colony to handle cases

Judiciary Act of 1789

- executive appointment --> government appoints prosecutor

1820s

- Jacksonian democracy

states began to elect local prosecutors

US attorney

- represents the govt in federal prosecutions

- appointed by the president

- approved by the Senate

- replaced with new admin

assistant US attorneys

- carry day-to-day operations ( charging decisions, plea, negotiations, appear in court)

- may stay for life

- non-partisan

State Prosecutors

- referred to as DA

- usually elected

- sets polices

- tasks vary by jurisdiction

- Most prosecutors delegate instead of performing operations

Assistant prosecuting attorneys

Work in the trenches of the criminal court system. While the chief prosecuting attorney and select supervisors set policy, it is the assistant prosecutors who appear in court, interview witnesses, oversee investigations, and negotiate with defense attorneys on a daily basis.

Horizontal model of prosecution

Assistant prosecutors are assigned to units that handle specific steps or functions in the judicial process that are routine in nature and involve limited discretion

used in a large office and handles a large number of cases

Vertical model of prosecution

A case is assigned to a single prosecutor who is responsible for the case at each step in the judicial process from initial appearance through a final disposition

used in smaller cases

not as efficacious, but allows the victim the advantage of dealing with only one attorney

Mixed Model of prosecution

Most cases are handled horizontally. Specific crimes, however, such as homicide and sexual assaults, are handled at all steps along the process by a specialized unit

Non-Prosecutorial Duties

- legal assistance and advice ( city council, public officials, governor)

- defending lawsuits against the county

- juvenile and dependency matters

- child support enforcement

- victim assistance

- civil asset forfeitures

Prosecutorial Duties

Assisting law enforcement officers (probable cause for warrants and investigations)

informing the police before filing charges

Screening cases and making charging decisions,

Plea bargaining,

Disclosure of evidence

charging decisions

prosecutors screen cases and decide which cases to prosecute

Not all can be prosecuted

- limited resources

- not all approaches for arrest

limited discretion

ethical boundaries (must have sufficient evidence)

Three key factors of charging decisions

- offense seriousness (violent v. non-violent)

- offenders' culpability (intention and criminal history)

- likelihood of conviction

courtroom work group

The social organization consists of the judge, prosecutor, defense attorney, and other court workers

assembly line process (what proceustors do dicate what actors will do next)

prosecution discretion (control of workload through the power of charging decisions)

manage caseflow ( prosecutors decide how cases are handled affect the workload for other members)

work together (failure by the prosecutor affects other members)

going rate

a enerally agreed-upon sentence for a defendant based on the crime and prior recordgenerally agreed-

Brady Rule

The prosecutor has a duty to disclose evidence favorable to a defendant

testimony and witnesses

statements made by the witness under oath to establish a fact

exculpatory evidence

Evidence that is favorable to the defendant

impeachment evidence

calls to question the credibility of a witness giving a testimony

bias against defendant could lead to impeachment of the witness

failure to disclose

The party intentionally withholds evidence

If intentional, punishment and dismissal of charges

adversarial system

attorneys advocate for one side of the other

prosecutorial misconduct

unethical action on behalf of the prosecutor

courtroom misconduct (Inappropriate comments in front of the jury )

evidence witness/ tampering

failure to disclose exculpatory evidence

using false evidence

harrasemtn/bias (selective prosecution)

improper behavior during the grand jury

mandatory sentencing laws

Laws that require a judge to impose a specified sentence regardless of the circumstances of a crime.

increased prosecutorial discretion

decreased judicial discretion

defense attorney roles

- protect the rights and promote the interests of their clients

- defend guilty clients

- challenge the reliability of the case

- cross-examine the witness

raise matters involving violations

- search for justice (challenge the government and protect rights)

Historical context of the right to counsel

- originally, no right to counsel in English common law

- colonies began to provide counsel because of colonists being prosecuted with no protections

Powell v. Alabama

The Supreme Court ruled here that the right to counsel was required by law in death penalty trials.

Johnson v. Zerbst

overturned Powell

6th Amendment right to counsel applies to all federal felony cases.

Betts v. Brady

right to a lawyer in special circumstances

Brady was competent and able to represent himself, did not need a lawyer appointed

Gideon v. Wainwright

overruled Betts

state must provide counsel at the state's expense in felony cases

counsel was essential to fair trial

was incorporated in 14th and binding to states

Argersinger v. Hamlin

A person has a right to appointed counsel in any case in which he may be sentenced to jail.

One cannot be imprisoned if counsel is not provided

Scott v. Illinois

A person may be imprisoned only if given the opportunity to be represented by counsel

clarified Argeisinger

At what point does one have a right to an attorney?

Once initiation and formal proceedings are attached, the defendant has the right to an attorney in all critical stages

right to counsel

- coustial integration

- preliminary hearing

- lineup (postindictment)

- post-indictment proceedings

- plea bargain negotiations

- trial

-sentencing

- motion for new trials

- probation/parole if incarcerated

no right to counsel

- non-coustidal integration

- prearrest hearing

- initial appearance

- lineup (preindictment)

- grand jury proceedings

- probation and parole if no jail

- discretionary appeals

- habeas corpus petitions

Indigent Defense Systems

Assigned counsel programs

Contract attorney programs

Public defender programs

assigned counsel programs

Employ private attorneys to represent indigent defendants.

Ad Hov assigned attorneys

assigned. hy case by case basis

whoever is there

coordinated assigned courts

lawyers apply to be on a list of counsel that is then appointed to cases

contract attorney counsel

x

fixed price

Law firm agrees to accept a number of cases during the contract period

fixed- fee per case

takes a set number of cases for a fixed fee per case, more common

Public Defender Programs

public/non-profit providing representation

directly appointed

larger jurisdictions

effectively handle cases

private attorneys

- viewed better by clients ( more trusting )

- more time w/ clients

- more motions

- meet with more familes

public attorneys

- overworked

- more clients

- more familiar with the jurisdiction

- procedural familiarity

McMann v. Richardson

The defendant has a right to effective counsel.

Strickland v. Washington

The Supreme Court ruled that defendants in capital cases have a right to representation that meets an "objective standard of reasonableness.

two-prong test

Was the attorney's preface deficient?

- requires reasonable probability, that expect for counsel errors, the result would have been different

If so, did the preforamnce injure the defendant?

US v. Cronic

proof of specific errors that the counsel failed to challenge any aspect of the prosecution's case

McCoy v. Louisiana

Rights of the accused to have an attorney after having already dismissed an attorney.

pro se

Representing oneself. Serving as one's own lawyer.

edwards v lousiana

One must be mental conmpent and able to represent oneself in a trial

mental illness may perform in such a manner that deprives an individual of a fair trial

Feretta V. California

Defendant has the right to knowingly and intelligently waive his right to counsel and represent himself.

US v. Gonzalez-Lopez

Holding: You have the right to retain counsel of your choice (if you can pay for it).

You are not entitled to your choice of counsel if you are seeking appointed counsel.

dsistrust

stems from environment, attorney autonomy, and past experience

nix v. whitesaide

The defendant does not have the right to commit perjury, and attorneys should never assist in this

pre-arrest roles

search warrants must be signed by judge

postarrest roles

initial appearance ( inform of charges and decide consotions of custody)

arraignment

evidenatary hearings on plea deals ( ruling on motions based on evidence and encourges pleas to be reached)

posttrial roles

impose sentencing

sentencing strictures ( dreaminess and limitless dissection)

sentencing guidlines

probationary setences

probation violation

roles of judges

manger ) allocation of dities, job prefromance, perosnality conflicts)

timebale ( court scheduls)